Melanson v. Reed Bros.

• Decision Date: 18 November 1950
• Parties: MELANSON v. REED BROS., Inc.
• Court: Maine Supreme Court

Page 853

76 A.2d 853

146 Me. 16

MELANSON v. REED BROS., Inc.

Supreme Judicial Court of Maine.

Nov. 18, 1950.

John A. Platz, Lewiston, for plaintiff.

Hutchinson, Pierce, Atwood & Scribner, Portland, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MERRILL, Justice.

On exceptions to the acceptance of a Referee's Report. The case was heard by a referee under rule of court with right of exceptions as to questions of law reserved. The referee reported in favor of the plaintiff. Written objections were made to acceptance of the referee's report. The objections were overruled, the report accepted, and exceptions filed and allowed. It is upon these exceptions that the case is now before this court.

The facts of this case are simple. The plaintiff was the servant of the defendant. The defendant was engaged in the growing and marketing of potatoes upon an extensive scale. At the time of the plaintiff's employment the defendant was engaged in digging its crop from several large fields by means of potato diggers drawn and operated by tractors. The referee found that the plaintiff and one Walker were employed to load potatoes from the field into a truck, counting the number of barrels, keep the field spaced for the pickers and help about the tractor and digger if it should break down. He further found that they informed the defendant of their unfamiliarity with the machinery being used. The plaintiff and Walker went to work in a field where one Wallace Higgins, together with a man by the name of George Glew, were operating the digger and tractor, Higgins being the operator of the digger and Glew being the operator of the tractor. The tractor furnished the power not only for drawing the digger over the ground but in addition, by means of a power takeoff, operated the mechanism of the digger. This power takeoff was a square shaft about six inches in diameter extending from the tractor to the digger. It was located two and one-half to three feet above the ground. Ordinarily when in operation this power takeoff was covered with a guard. When in operation the power takeoff revolved within the guard. At the time of the accident the guard had been removed for the purpose of greasing the power takeoff. The plaintiff and Walker had been at work about nine days. After lunch on the ninth day, Mr. Higgins, the digger operator in their field, called them to where the digger and tractor were standing and set Walker to work greasing the digger. Higgins asked the plaintiff to get him a wrench which lay upon the ground in front of the plow of the digger, and between the digger and tractor. At that time the engine of the tractor was in operation. The power takeoff was not in operation, being disengaged. The tractor operator, Glew, had the physical control of the clutch which engaged and disengaged the power takeoff. It was his duty to start and stop the power takeoff at the direction of Higgins. In stooping to pick up the wrench, the plaintiff placed his hand upon the idle power takeoff. While his hand was there the power takeoff commenced to revolve. It caught the glove on the plaintiff's left hand and tore off his left thumb.

In his report the referee states: 'The Referee finds that Wallace Higgins, whose duty it was, as operator of the digger, to warn the plaintiff of the hidden danger incident to contract with the power takeoff and which danger was unknown to the plaintiff, failed to do so.'

It is upon this breach of duty that the referee grounds liability on the part of the defendant. By appropriate objection and exception the defendant has challenged the above finding of the referee, which finding is determinative of the plaintiff's right to recover. Unless there was a duty upon the part of the defendant to warn the plaintiff of the danger of contract with the power takeoff, which contract was the cause of the plaintiff's injury, the report of the referee cannot be sustained.

If there be any credible evidence from which the referee could find that the defendant owed the plaintiff the duty to warn him of the danger of coming in contact with the power takeoff when he attempted to pick up the wrench the objection and exception to the finding must be overruled. Staples v. Littlefield, 132 Me. 91, 167 A. 171; Edwards v. Hall, 141 Me. 239, 42 A.2d 340.

One of the many duties that a master owes to his servant is that of warning the servant of hidden dangers that he may encounter in the course of his employment. It is to be noted that the duty is to warn of hidden as distinguished from obvious dangers. However, the duty to warn even of hidden dangers is not universal in its application. Before there is a duty upon the master to warn of a hidden danger the danger must be known to the master, or in the absence of actual knowledge thereof, it must be a danger, the existence of which he, by the exercise of due care on his part, should have known. Furthermore, it must be a danger which is unknown to the servant and which would not be known and appreciated by him if in the exercise of due care. In Wormell v. Maine Cent. Railroad Co., 79 Me. 397, 405, 10 A. 49, 51, a leading case in this jurisdiction, we said: 'Moreover, the law implies that where there are special risks in an employment of which the servant is not cognizant, or which are not patent in the work, it is the duty of the master to notify him of such risks; and, on failure of such notice, if the servant, being in the exercise of due care himself, receives injury by exposure to such risks, he is entitled to recover from the master whenever the master knew, or ought to have known, of such risks. It is unquestionably the duty of the master to communicate a danger of which he has knowledge and the servant has not. But there are corresponding duties on the part of the servant; and it is held that the master is not liable to a servant who is capable of contracting for himself, and knows the danger attending the business in the manner in which it is conducted, for an injury resulting therefrom. Lovejoy v. Boston & Lowell Railroad Corp., 125 Mass. , 82; Ladd v. New Bedford R. R. Co., supra ; Priestley v. Fowler, supra. It is his duty to use ordinary care to avoid injuries to himself. He is under as great obligation to provide for his own safety, from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part, as the master is to provide it for him.'

In Hume v. Ft. Halifax Power Company, 106 Me. 78, 82, 75 A. 300, 302, we said:

'And, moreover, the law implies that the discharge of this duty requires the master to notify his servant of any and all special risks and dangers of the employment, and of all dangerous conditions attendant upon the place of the exercise of the employment, of which the master has knowledge, or by the exercise of reasonable care would have knowledge, and which are unknown to the servant, and would not be known and appreciated by him if in the exercise of reasonable care on his part.

'This duty thus imposed upon the master is personal. The servant has the right to look to him for the discharge of it. If, instead of discharging it himself, the master employs some other person to do it for him, then...