Janilus v. Int'l Paper Co.

• Decision Date: 31 December 1914
• Citation: 92 A. 653,112 Me. 519
• Parties: JANILUS v. INTERNATIONAL PAPER CO.
• Court: Maine Supreme Court

92 A. 653

112 Me. 519

JANILUS

v. INTERNATIONAL PAPER CO.

Supreme Judicial Court of Maine.

Dec. 31, 1914.

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

Action by Charles Janilus against the International Paper Company. There was a verdict for defendant, and plaintiff brings exceptions. Sustained, verdict set aside, and new trial granted.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, and HANSON, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff.

Newell & Skelton, of Lewiston, for defendant.

HANSON, J. Action on the case for damages for personal injuries sustained by the plaintiff while employed as a laborer by the defendant. The verdict was for the defendant, and the case is before the court on exceptions by the plaintiff to the refusal of the presiding justice to give certain rulings requested, and to portions of the charge of the presiding justice.

The case shows that the plaintiff entered the service of the defendant in the town of Rumford, in the county of Oxford, three days before he was injured, and that on the day of the injury he was directed, with others, to unload coal from cars standing on a track in the yard of the defendant. The cars containing the coal had been separated, or kept apart, to make a passageway for the workmen engaged in that work. After completing the work of unloading, the employes returned to their other employment, the plaintiff being the last to leave the car, and in returning was passing between the cars so separated when, as he claims, without any warning or signal, the cars were suddenly forced together by an engine of the Maine Central Railroad Company, and he was caught between them and injured. The cars were located so that the engine could not be seen by the employes.

The plaintiff's counsel in his exceptions states that:

"The defendant by its foreman notified the Maine Central Railroad about one-half hour before the cars were actually ready that they were ready, and thereupon the Maine Central Railroad, after having been so notified, attached its engine and backed the car upon the plaintiff as stated. The cars were not entirely unloaded of the coal as a matter of fact when the defendant's foreman notified the Maine Central Railroad that the cars were ready for the engine to be attached thereto. The plaintiff immediately upon finishing unloading got out of the car with other workmen and followed them through the passageway between the cars. The Maine Central Railroad owned the cars, engine, and track, and employed the entire crew to oferate the cars."

The declaration sets out:

"That the defendant carelessly and negligently caused an engine to be attached to the train, and without any warning or notice of any kind to the plaintiff, pushed the train of cars in and upon the remainder of the train * * * and caught the plaintiff thereby between the train of cars and severely wounded, lacerated, and bruised his person," etc.

And in conclusion recites:

"That the defendant company carelessly and negligently backed a train to which they had attached their engine carelessly and negligently, without any warning to this plaintiff, in and upon his person, doing the damage aforesaid."

The defendant claims:

"That the defendant had absolutely nothing to do with starting or management of the train beyond the practice of its foreman to notify the train crew when the cars were unloaded. If he was a fellow servant with the plaintiff, his negligence, if any, would not warrant a recovery of the defendant, * * * and that the proximate cause of the injury complained of was the negligence of the Maine Central Railroad, a third party, for which it is not responsible."

The requested instructions follow:

"(1) That the defendant, by notifying the Maine Central Railroad that the cars were ready to be hauled out, when in fact they were not ready, and upon such notification the Maine Central Railroad attached its engine to the cars and thereby ran into the plaintiff without any warning either from the defendant or Maine Central Railroad, then the defendant is liable.

"(2) That if the defendant, by its Mr. Wood, who had the sole charge of notifying the Maine Central, carelessly and negligently did not take the means of informing itself whether this car in which the plaintiff was at work unloading was in fact not unloaded when Mr. Wood informed the Maine Central that the car was unloaded, then that is the negligence of the defendant company and for which it is liable.

"(3) That the defendant owed the duty to the plaintiff of providing a reasonably safe place in which to work, and, when it changed that place from reasonably safe by causing the Maine Central to back its train into the plaintiff, then it must have apprised and warned the plaintiff of the change."

The presiding justice declined to give the first and second requested instructions except as they appear in the charge.

As to the third requested instruction, the presiding justice, in refusing to give the same as requested, said:

"I cannot give this instruction. I will instruct the jury, however, that it is the duty of the defendant to provide a reasonably safe place in which to work, a reasonably safe place for its employes in which to work; and when by any act of the defendant, or any of its vice principals, it renders unsafe a place which was formerly safe, it may then be liable in damages, if other conditions of the case do not prevent."

The first two requests were properly refused. They are comprehended in, and the plaintiff was amply protected by, the instruction given in response to the third requested instruction, which, in connection with the charge, states the law applicable to that branch of the case.

The remaining exception is to the following instruction given upon request of the jury for further instruction:

"The Court: I am informed through your foreman that certain members of the panel would like to know if Mr. Wood notified the Maine Central officials to shift the empty cars, would the International Paper Company be responsible? I can only repeat to you, in substance, my instructions upon that point. I defined what constituted a vice principal, and 1 think that the definition of that may remain in your memory; and I instruct you that if you find that Mr. Wood was a vice principal, and any act of a vice principal negligently done, the plaintiff being in the exercise of due care, would make the defendant corporation liable. But the mere notification by Mr. Wood of the Maine Central people that the empty cars were ready to be moved out—the mere notification of the Maine Central people by Mr. Wood of that fact—would not necessarily make the International Paper Company liable, for the negligence which the plaintiff complains of is that the defendant company negligently attached an engine to the cars. So that it must appear to you from all the evidence in the case, by a fair preponderance of that evidence, that the International Paper Company was in control of the engine, and that the engine was negligently attached to the cars, and that the plaintiff was in the exercise of due care when the accident occurred. So bearing in mind, as I have said, all the time, that the plaintiff must show that he was in the exercise of due care, it must be shown that the International Paper Company, or some of its vice principals, were in actual control of that engine at the time when the accident occurred, in order for the plaintiff to recover. If no vice principal of the International Paper Company was in actual control of the engine, then I instruct you you could not find a verdict for the plaintiff."

This exception should be sustained. The principal claim of the plaintiff raised by the pleadings was that the defendant carelessly and negligently caused an engine to be attached to the train, that a notice given by defendant's foreman when it ought not to have been given was the proximate cause of the injury, and that the defendant is liable because such notice in its effect rendered unsafe the place in which the plaintiff was working. This question, as it related to the condition of the place, the question of assumption of risk, with that of due care and negligence, had been properly presented to the jury previously in the charge; but the instruction given was equivalent to directing a verdict for the defendant. It left no other issue than the question of actual control of the engine, which, as has been seen, was not a controverted question. There was no claim on the part of the plaintiff that the defendant, or its vice principal, controlled the engine; but the plaintiff did claim that the defendant by the premature notice to the trainmen caused the trainmen to attach the engine to the train before it was actually ready, thus performing an act which in its effect was the proximate cause of the injury, and, in connection with the contention of the plaintiff that the defendant did not provide the plaintiff a safe place in which to work, raised the issue in the case whether the act of the defendant rendered unsafe the place in which the plaintiff was employed.

The defendant was charged with the duty of providing a suitable place for the plaintiff in which to perform his work. In the maintenance of this particular place as a safe place for its employes to work, it had been customary for some employe of the defendant to notify the railroad employes "when the car was empty." By common consent this notification was a duty, so understood and used by counsel and court in the progress of the case and in the charge of the presiding justice. It was a duty imposed upon the...