Merrill v. Wallingford

• Decision Date: 26 January 1959
• Citation: 154 Me. 345,148 A.2d 97
• Parties: John E. MERRILL v. Ivan WALLINGFORD.
• Court: Maine Supreme Court

Page 97

148 A.2d 97

154 Me. 345

John E. MERRILL v. Ivan WALLINGFORD.

Supreme Judicial Court of Maine.

Jan. 26, 1959.

Richard Harvey, Herbert H. Bennett, Portland, for plaintiff.

Paul A. Choate, Frank W. Linnell, Auburn, for defendant.

Before WILLIAMSON, C. J., WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

SULLIVAN, Justice.

This is a common law action of tort instituted by the plaintiff to retrieve his damages for personal injuries and their consequences, sustained by him whilst working as a mechanic for the defendant. The Workmen's Compensation Act does not apply since the defendant had but two employees. R.S. (1954), c. 31, § 4; P.L.1957, c. 343.

At the close of the plaintiff's evidence the defendant moved for a directed verdict. The motion was denied. Defendant excepted to such a ruling and now prosecutes his exceptions.

The plaintiff had complained that the defendant without heed to his duty had negligently failed to afford the plaintiff safe means or place for the performance of the plaintiff's work and that as a result the plaintiff without fault on his part had become severely injured in his person. The defendant pleaded a general denial, the contributory negligence of the plaintiff and the assumption of risk by the plaintiff.

The record is before us and upon the paramount issue of this case the basic principle has been plainly and often stated by this Court, e. g.,

'We view the evidence in the light most favorable to the plaintiff to determine whether the matter was properly submitted to the jury to determine controverted facts and to draw any reasonable and legal inferences therefrom. Greene v. Willey, 147 Me. 227, 86 A.2d 82. A verdict is properly directed for a defendant when the evidence tending to support a verdict for the plaintiff is not such as reasonable minds are warranted in believing, as when it is incredible, or unreasonable, or inconsistent with the proved circumstances of the case, or when the evidence contrary to the plaintiff's position is so overweighing and so overwhelming as to make it appear that the jury could not reasonably and rationally find a verdict in favor of the plaintiff. Garmong v. Henderson, 114 Me. 75, 95 A. 409. In such cases prevention by direction of the verdict is better than the cure. Sylvia v. Etscovitz, 135 Me. 80, 189 A. 419; Weed v. Clark, 118 Me. 466, 109 A. 8.' Jordan v. Portland Coach Co., 1954, 150 Me. 149, 150, 107 A.2d 416.

We now review the evidence in this case in the light most favorable to the plaintiff.

The defendant was engaged in the business of dealing in farm machinery and of operating a bulldozer and rototiller. The plaintiff served him in part as a repair man and had done so for two months. For the conduct of his business the defendant rented a building 20 feet by 30 feet from his father who was a commercial orchardist. Yet the father simultaneously co-occupied the building with his own equipment and employees and for the furtherance of his own calling. The testimony fails to acquaint us with additional knowledge of the precise legal relation of son with father in regard to the building save to disclose that the defendant did not enjoy exclusive control.

The ground floor afforded a repair shop for son and father. Along one wall ranged a work bench, with a vise, power drills and a tool box upon it. There was a quantity of metal in a rack and more on the cement floor. Various types of farm machinery were about as well as a mobile acetylene burning apparatus with tanks, hose and nozzle.

The plaintiff had had a very considerable experience with acetylene torches. On the morning of the accident the defendant assigned the plaintiff to the duty of fabricating a metal bumper and attaching it to a large Case tractor of the defendant which was resting on end on the floor. The defendant then left the shop in accordance with his intermittent practice.

At the same time the father of the defendant possessed a tractor which was stationed upon the floor only a few feet from the defendant's tractor which the plaintiff was repairing. For two days to the knowledge of the plaintiff an employee of the father of the defendant had been removing the paint from the father's tractor by a sanding process and had been readying the vehicle for fresh coating. The father's employee and the plaintiff were alone in the shop. The former went outside to his automobile and fetched a brilliantly red can of paint thinner of one gallon dimension, one foot in height and topped with a screw cap. He set the object on the shop floor between the two tractors and near a drawer containing paint screens and sticks used for mixing purposes. The can was located about two feet from the bench, within three feet of the area where the plaintiff was working and some fifteen feet from the defendant's tractor. The employee of the defendant's father was thereupon attracted to a door of the garage in an opposite side of the building by a man seeking to negotiate some business with the defendant's father. The employee's back was to the plaintiff. The plaintiff placed or had placed a piece of steel in the vise at the bench and proceeded to cut the steel with the acetylene torch. Shortly there was an explosion and the employee of the defendant's father turned about to discover the plaintiff afire and the shop ablaze with high flames billowing above a puddle of liquid on the floor. The contents of the red can had obviously exploded and the bottom of the can which was otherwise intact had cleanly blown away as if parted at the seams by expansive pressure. The plaintiff was grievously injured.

The plaintiff had not observed the can nor had he exerted any pains to notice its close presence or position. The deduction is compelling that glowing particles from the steel under the impact of the torch's flame had cascaded to the floor and expanded gases in the can which yielded and burst at the weakest part.

The testimony personifies the plaintiff as a matured adult with several years of mechanical schooling and experience. He was sufficiently familiar with the operation of an acetylene torch. Painting had been performed in the shop at three or four times during the plaintiff's two months' employment there and at the time of the unfortunate accident the plaintiff was aware that during two days preparatory disposition for the painting of the other tractor had been advanced and that the application of the paint was imminent. The thinner was a conventional ingredient in such painting and the conspicuous can was located where the plaintiff had only to look to see it before he projected the molten steel fragments. The defendant had no knowledge of the presence or of the situation of the can...