Kolasen v. Great N. Paper Co.

• Decision Date: 06 November 1916
• Citation: 98 A. 1029
• Parties: KOLASEN v. GREAT NORTHERN PAPER CO.
• Court: Maine Supreme Court

98 A. 1029

KOLASEN

v. GREAT NORTHERN PAPER CO.

Supreme Judicial Court of Maine.

Nov. 6, 1916.

Report from Supreme Judicial Court, Somerset County, at Law.

Action by John Kolasen against the Great Northern Paper Company. Verdict for plaintiff and defendant moves for a new trial. Motion denied, and judgment on the verdict.

See, also, 114 Me. 400, 96 Atl. 726.

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

S. W. Gould and Maurice P. Merrill, both of Skowhegan, for plaintiff. Newell & Woodside and White & Carter, all of Lewiston, for defendant.

CORNISH, J. Action on the case for personal injuries. It is before this court a second time.

At the first trial a nonsuit was ordered at the close of the plaintiff's evidence, and exceptions to this order were sustained. Kolasen v. Great Northern Paper Co., 114 Me. 400, 96 Atl. 726.

Upon a second trial the jury returned a verdict in favor of the plaintiff in the sum of $12,000. The case is now before this court on a motion for new trial on the general ground that the verdict is against the evidence. The evidence is practically the same as at the first trial. The defendant submitted no testimony whatever except the affidavit of a witness for the plaintiff, a fellow workman, who at this trial testified that he had no recollection of having cautioned the plaintiff about being careful when he was at work around belts and pulleys. In this affidavit, made on the date of the accident, he states that when he had been working with Kolasen he had told him "to be careful about working around belts and pulleys, and not get caught." This, however, is not evidence of the fact itself. It was a statement made by a witness out of court at variance with his testimony on the stand. As such it was admissible for the purpose of impeaching his credibility, but can be given no other or further weight. Barnes v. Rumford, 96 Me. 315, 322, 52 Atl. 844.

The situation therefore is this: This cause was sent back for trial because the court was of the opinion, to quote its language, "that the facts relating to the question of liability of defendant should have been submitted to the jury." The cause has now been submitted to a jury, and a verdict rendered for the plaintiff. Upon the same evidence as before the defendant now asks that the verdict of the jury be set aside. In other words, it asks the court to now hold as a matter of law that the plaintiff cannot recover. This question has, in effect, been passed upon in the previous decision. If the court had then been of opinion that the plaintiff could not recover as a matter of law, it would have sustained the nonsuit, and would not have ordered a submission to the jury. It is the same question as before in another form, and the refusal of the nonsuit then is logically followed by the denial of this motion now.

It is not improper to add, however, that we have carefully reviewed the evidence in the light of the argument of the learned counsel for the defendant, and we see no occasion to change the opinion formerly expressed.

The doctrine of the so-called "setscrew cases" is strenuously urged by the defendant as a complete defense to this action. But we do not so regard it. The principles applicable to the correlative duties of master and servant respecting revolving shafts and setscrews form a part of the great body of the law of negligence, and do not, or at least should not, constitute an exception thereto. There is nothing sacred about a setscrew. It takes its place in the same category as other mechanical appliances and devices. The same rules must apply to all. Those rules are set forth in a comparatively recent setscrew case in this state (Podvin v. Manufacturing Co., 104 Me. 561, 72 Atl. 618, 129 Am. St. Rep. 411), relied on by the defendant. The duty of the master with respect to furnishing reasonably safe machinery and a reasonably safe place in which the servant can work is thus restated:

"The plaintiff claims that the risk was upon the defendant, because it did not have the setscrews so countersunk or otherwise fixed as to remove all danger of injury from them. This claim is not well founded. It is not the legal duty of an employer of labor upon machines to provide and use the safest possible, or even safest known, machines. There must be no weakness, no want of repair, no dangerous feature, not visible to an observing operative, or made known to him, and such as the employer should have known. If such a machine be provided, the employer has done his full legal duty in that respect."

The liability resting upon the servant touching the assumption of risk then follows in these words:

"But the plaintiff further claims that the risk was upon the defendant, and had not been assumed by her because her attention had not been called to the setscrews and to the danger of injury from them. This claim is also without foundation. An...