McCafferty v. Maine Cent. R. Co.

• Decision Date: 15 December 1909
• Parties: McCAFFERTY v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

76 A. 865

108 Me. 284

McCAFFERTY

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

Dec. 15, 1909.

(Syllabus by the Court.)

On Motion from Supreme Judicial Court, Cumberland County.

Action by Bernard J. McCafferty against the Maine Central Railroad Company. Verdict for plaintiff, and defendant moves for a new trial. Motion sustained.

Argued before SAVAGE, SPEAR, CORNISH, KING, and BIRD, JJ.

William H. Looney and Robert Treat Whitehouse, for plaintiff.

Nathan & Henry B. Cleaves, Stephen C. Perry, and White & Carter, for defendant.

SAVAGE, J. Action on the case to recover for personal injuries alleged to have been caused by the negligence of the defendant company. The verdict was for the plaintiff, and the case comes up on the defendant's motion for a new trial. There is little dispute as to most of the essential facts.

The defendant has a machine shop at Thompson's Point, in Portland, in which locomotives and cars are repaired. The building is about 250 feet long and about 80 feet wide, and it is built of brick. In the north side of the building are 11 openings, or doors, through each of which a track is laid so that locomotives and cars can be pushed into the building. Just inside each door, and under the track, a pit is excavated, so that workmen can conveniently work under the locomotives or cars. These pits are numbered from 1 to 11, beginning at the east end. Within the building, on the north side, over the pits, a movable electric crane for raising and moving heavy articles was operated, with trucks running on parallel rails 50 feet apart. The rails were about 24 feet above the floor of the shop, high enough to allow the crane to pass over locomotives standing over the pits without touching them. Suspended from the crane was an open steel cage, in which the operator of the crane sat. The crane was operated by electric power, and the operator, by handling various levers, could cause the crane to move back and forth, east and west, on its tracks. He could also cause the hoisting apparatus to be raised and lowered, and to move sideways, north and south, by means of a carriage under the crane itself. The crane was provided with a friction brake, consisting of a solid iron drum revolving on a shaft, surrounded by wooden friction blocks, which were compressed against it by a circular metal band operated by a foot lever in the cage. There was no gong, whistle, or other device for giving warning of the approach of the crane, and the defendant company had promulgated no rules for regulating the running of the crane or the work in the shop. The northerly rail traversed by the wheels of the crane was 5 inches high, and rested on an I-beam 30 inches and 10 inches wide on the top, and the I-beam was supported by brick piers built up from the floor. The I-beam was about 7 or 8 inches from the north wall of the building, and was stayed to the wall by anchor plates, built into the wall at one end and riveted to the I-beam at the other. These anchor plates came nearly to the top of the beam. A water pipe had been laid back of the rail, on top of the anchor plates; and in April, 1908, the defendant prepared to lay an air pipe on the same plates, parallel with the water pipe. No part of the ordinary business carried on in the shop required any employe to work upon or about this rail, and no one ever bail so worked, except when laying these pipes.

The plaintiff was a skilled machinist and steam fitter and piper in the employment of the defendant He was about 60 years of age, and a man of more than ordinary intelligence. He had worked for the defendant at the Thompson's Point machine shops about 18 years. The first shop having been burned, he had worked in the shop now in question about 5 years, and was entirely familiar with its appointments, and with the methods of work pursued there. He was injured, as will be hereafter described, on Tuesday, April 14, 1908. On the Saturday before his foreman directed him to come on Sunday and commence laying the air pipe, but gave him no directions whatever how to do it. He was left to do it in his own way and time, except that he was to commence on Sunday. He and his helper worked on the pipe Sunday and Monday, and, until the plaintiff was hurt, Tuesday. They procured ladders and rested them against the crane track, and carried up pieces of the main pipe and laid them on the anchor plates beside the water pipe and then fitted them together. They fitted T's into the main pipe, one near each door, into which upright pipes from below were to be fitted. As the work progressed they moved their ladders from time to time. Some of the work of fitting, like putting in the T's, was done at the bench; but the jointing of the lengths of the main pipe had to be done after they were in place on the anchor plates, and the fitting of the uprights into the T's could only be done after the main pipe was in place and jointed. So it happened that the plaintiff and his helper a part of the time were at work at their bench in the shop, and a part of the time were working upon or around the crane track. While the placing of the main line of pipe in position necessarily required the plaintiff, or his helper, or both, to go up onto the crane track, the plaintiff tried in two different ways to fit the uprights into the T's from below. He decided that these methods were impracticable, and then, to use his own language, "we conceived the idea that if I went up the ladder and laid down, so I could get my hand down in and could see to hold it under there, a matt could catch it very readily, and in that way we expedited the work." Aud the plaintiff adopted that method. He went up onto the crane track, lay down as well as he could between the track and the wall, put his left arm down between the air pipe and the water pipe, and, taking the upper end of the upright pipe in his hand, held it in the proper place, while his helper, standing down on the floor, turned it into the T. The operation took from one to three minutes. While in this position, the plaintiff's body was partly above the crane track; for the top of the pipe was only 3 or 4 inches below the top of the rail.

While the plaintiff was engaged in this job, the crane was moved back and forth as the general business of the shop required. The operator knew about the work the plaintiff was doing, and where he had to work. Several times Monday and Tuesday the crane had to be stopped to allow the plaintiff to take down his ladders so that it could pass by. On Sunday the crane at one time hit and broke a ladder. It should be said, however, that the regular operator, a young man 18 years old, was not there Sunday. Tuesday forenoon the plaintiff went up his ladder onto the track, to assist in fitting into a T an upright pipe which was held up to him by his helper underneath. He was then, he thinks, over pit No. 7. He lay down, as before described, between the rail and the wall, with his head towards the east end of the building and his right arm and one leg over the rail, and looked down and watched the motions of his helper. He observed, before he lay down, that the crane was easterly of him near the end of the building, and that it was at work hoisting. He had given no notice to the crane operator that he was going up at that time, and did not know whether the operator was aware of his being up there or not. While the plaintiff was lying down and helping fit the upright into the T, another employe of the defendant, not knowing the plaintiff's situation, motioned the crane operator to move the crane to the west, wishing to use it at pit No. 10. The operator obeyed the signal. He looked down and watched the movements of the man who had motioned to him, so as to know where to stop. He did not look for, or see, or think of, the plaintiff. He testified that he did not know that the plaintiff was on the track, that he had seen him move his ladders and go away, and that he supposed he had finished his job, but that he did not know where the plaintiff went. But, at any rate, he moved the crane onto the plaintiff, and caused him grievous injuries. The plaintiff did not hear the approaching crane, or have any notice of it, until it struck him.

It appears that for the proper working of the brake the friction should be slightly lubricated. It is contended for the plaintiff, though denied by the defendant, that at this time, and for some time previously, too much oil had been applied to the friction, so that the brake was apt to slip. And the operator testified that on this occasion, when he felt a jar, he applied the brake; but it slipped, and he stopped the crane by reversing the power. In the meantime the plaintiff had been pushed along the track several feet by the moving crane. We think the jury would have been warranted by the evidence in finding that the brake slipped this time by reason of there being too much oil on the friction.

There is one other disputed question, namely, whether the operator of the crane was notified to look out for, and not run upon, the plaintiff. The preponderance of the evidence is that such notice was given; but the operator denies it, and the jury were warranted in adopting his version.

Upon this state of facts, the plaintiff alleged in his writ, and now contends, that his injury was caused by the defendant's negligence in the following particulars: (1) By causing the crane to be started and run along the track while the plaintiff was upon it; (2) for want of a reasonably safe and suitable place to work; (3) for want of rules and regulations; (4) for want of sufficient instructions to the operator; (5) for want of special notice to the operator of the plaintiff's position from time to time; (6) for want of a gong or other means of warning persons of the approach of the crane; (7) for want of a competent person to operate the crane; and (8) for the slippery condition of the brake. On the other hand, the defendant...