Golden v. Ellis

• Decision Date: 11 May 1908
• Parties: GOLDEN v. ELLIS et al.
• Court: Maine Supreme Court

71 A. 649

104 Me. 177

GOLDEN

v. ELLIS et al.

Supreme Judicial Court of Maine.

May 11, 1908.

(Official.)

Exceptions from Supreme Judicial Court, York County, at Law.

Action on the case for personal injuries by John H. Golden against Jacob M. Ellis and others. A nonsuit was ordered, and plaintiff excepts. Exceptions overruled.

Action on the case to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendants, and caused by the alleged negligence of the defendants, and which injuries resulted in the loss of both of the plaintiff's eyes. Plea the general issue.

Argued before EMERY, C. J., and WHITEHOUSE, STROUT, PEABODY, CORNISH, and KING, JJ.

Fred A. Hobbs and Geo. F. & Leroy Haley, for plaintiff.

Verrill, Hale & Booth and Cleaves, Waterhouse & Emery, for defendants.

WHITEHOUSE, J. This case comes to the law court on exceptions to the ruling of the presiding justice ordering a nonsuit on the plaintiff's testimony.

In the fall of 1905 the defendants were engaged in building a stone bridge across the Mousam river, at Kennebunk, in pursuance of a contract with the Boston & Maine Railroad. The plaintiff was employed to work for the defendants primarily as a blacksmith to sharpen tools, and, when not engaged in that capacity, he was to work "elsewhere as an all-round man." On the morning of October 2d, among the "all-around" duties imposed upon him, he was directed by the foreman to "square up" a certain stone from which a corner had been broken. After lining off the face of the stone with a "redwood and square," the plaintiff undertook to break off and cut the edges of the stone up to the lines marked upon it by means of a bull-set and a large striking hammer. The bull-set is a steel implement five or six inches long. One end of it, corresponding to the peen of a mason's hammer, is three-fourths of an inch thick, and suitably shaped and tempered for breaking stone. The other end, the head of the set, is left with the steel as manufactured without hardening. When duly equipped with a wooden handle, this bull-set bears a general resemblance to a hammer. The large striking hammer was a piece of steel with a head 'about two inches square; the corners being chamfered so as to give it an octagonal shape. The face of it was flat, and showed the line checks or fire cracks caused by overheating in the process of manufacture. There was only one other large striking hammer used on the job.

The plaintiff was holding the bull-set along one of the lines marked on the stone, and a fellow servant called for that purpose undertook to wield the striking hammer. A light blow was first struck on the head of the bull-set for the purpose of gauging the distance, and, when the second blow was struck, a small piece of steel chipped off of one corner of the face of the hammer, and flew into the plaintiff's left eye, resulting eventually in the loss of the sight of both eyes.

It is alleged that the striking hammer used on that occasion was defective and unsafe; and this action was brought by the plaintiff to recover damages for the injury suffered by him on account of the alleged failure of duty on the part of the defendants in not providing suitable tools to be used in connection with the service required of him.

The plaintiff was 46 years of age. He had worked as a stone mason for 25 years, and his experience as a tool sharpener comprised a period of 15 years. He had learned from his experience as a blacksmith that steel implements were rendered brittle by overheating and overhardening in the process of manufacture or sharpening, and that, in the use of such tools, pieces of steel were liable to be broken off and fly from the hammer as well as from other tools. A week or 10 days before the accident he put a new handle into this defective hammer, and he states in his testimony that he noticed the fire cracks or checks on the face of it, and knew it had been burned and was brittle, and that it was liable to break and chip whenever it was used. The plaintiff knew that the other striking hammer in use had a round face, while this one it has been seen had a square face; the corners being slightly chamfered. When the fellow servant came up to do the striking, the plaintiff admits that he neither inquired nor looked to see whether the hammer in his hands was the round-faced one, or the square-faced one with the fire cracks on it. He knew that it must be one or the other, but even when the striker gently laid it upon the head of the bull-set, held by the plaintiff, for the purpose of "getting the distance," the plaintiff did not look to see which one it was. He states in his testimony, it is true, that he supposed it was the good hammer that the striker was using, but he gives no reason for this assumption. For aught that appears, it was as likely to be the defective hammer as the good one. He testifies that after that piece of steel had gone into his eye, at a time when he must have been suffering severe pain, he "noticed that it was the flat-faced hammer with the cracks on it." But be admits that he afterward said to some one at the hospital that he "couldn't tell until he saw it" whether the piece of...