Kimball v. Clark

• Decision Date: 30 January 1935
• Citation: 177 A. 183
• Parties: KIMBALL v. CLARK.
• Court: Maine Supreme Court

177 A. 183

KIMBALL

v. CLARK.

Supreme Judicial Court of Maine.

Jan. 30, 1935.

On Motion from Superior Court, York County.

Action by Bert Kimball against Robert Clark. Verdict for plaintiff, and defendant presents a general motion for new trial, together with a special motion based on newly discovered evidence.

Motions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and HUDSON, JJ.

Arthur E. Sewall, of Portsmouth, N. H., and E. P. Spinney, of North Berwick, for plaintiff.

Ralph W. Hawkes, of York Village, and John J. Higgins, of Boston, Mass., for defendant.

STURGIS, Justice.

General motion for a new trial by defendant, together with a special motion based on newly discovered evidence. The action is in negligence for damages resulting from ivy poisoning. No exceptions were reserved.

The plaintiff offered evidence tending to prove that on June 27, 1926, while employed by the defendant as a common laborer about the grounds of his cottage at York Harbor, he was directed to mow the bushes on a small knoll, and in doing so came in contact with poison ivy, and was so poisoned that he was unable to work regularly, suffered great physical discomfort, and incurred large expenses for medical treatment. He told the jury that he not only did not know that there was poison ivy where he was directed to work, but was unacquainted with the plant, and would not have recognized it if he had seen it. He stated that he first knew that he had been working in poison ivy when the defendant, after the mowing was finished, told him that he was glad the ivy had been cut off, and insists that, if he had known the plant was there, he would not have cut the bushes. The plaintiff is corroborated by his son-in-law, who claims to have been present when the plaintiff was poisoned, and confirms his account of what was said and done at the time.

The defendant told the jury a very different story. His testimony was that in September, 1925, he and his wife were closing their cottage for the season, and, in the course of conversation relative to work to be done on the grounds, called the plaintiff's attention specifically to the poison ivy on the knoll, and expressed a desire to have it removed. His testimony on this point is as follows:

"I made the remark, T wish I could get this poison ivy removed.' And Bert said, 'Why, I will take it out.' And I said, 'No, I don't think you better take it out because, if you remember, Charlie Mains took it out and he said it wouldn't poison him and he got very badly poisoned, so I think you had better leave it alone.' And he said no, he was not afraid of it and he would take it out. I then said, 'Well, all right, go ahead and take it out.' That ended the conversation then."

The defendant went on to say that he knew nothing more about the matter until the middle of the next June, when the plaintiff told him that he was poisoned when he cut the ivy. The defendant admitted that he knew that the ivy was poisonous and that the knoll in front of his house was covered with it. His wife corroborated him in all the substantial details of his testimony.

The physicians called in the case disagreed as to the cause of the plaintiff's affliction and the probability of its having resulted from contact with poison ivy. It was undisputed that he suffered from a long-continued and incapacitating skin eruption. In view of the history of the case as it appears in the record, a finding that the plaintiff's skin eruption was due to poisoning by ivy was not clearly wrong.

It is the duty of a master to use reasonable care to furnish for his servant a reasonably sate place in which to do his work. Charpentier v. Tea Company, 130 Me. 423, 157 A. 237; Loring v. Maine Central Railroad Co., 129 Me. 369, 152 A. 527; Sheaf v. Huff, 119 Me. 469, 111 A. 755; Elliott v. Sawyer, 107 Me. 195, 201,77 A. 782. In the discharge of this duty, the law requires the master to give suitable warning to his employee of any and all special risks and dangers of the employment of which the master has knowledge, or by the exercise of reasonable care should know, and which are unknown to the employee and would not be known and appreciated by him in the exercise of reasonable care on his part. Loring v. Railroad Company, supra; Dirken v. Great Northern Paper Co., 110 Me. 374, 86 A. 320, Ann. Cas. 1914D, 396; Welch v. Bath Iron Works, 98 Me. 361, 369, 57 A. 88; Wormell v. Maine Central Railroad Co., 79 Me. 397, 10 A. 49, 1 Am. St. Rep. 321. See, also, 4 Thompson on Negligence, 332; Williams v. Walton & Whann Co., 9 Houst. (Del.) 322, 32 A. 726. And it is settled law that, while a servant as sumes the...