Moore v. Isenman
| Decision Date | 16 October 1928 |
| Citation | 143 A. 462 |
| Parties | MOORE v. ISENMAN. |
| Court | Maine Supreme Court |
Exceptions from Superior Court, Cumberland County, at Law.
Action by Bertrand L. Moore by his next friend against Abraham Isenman. Verdict for plaintiff, and defendant brings exception to trial judge's refusal to direct verdict for defendant, and defendant makes general motion to set aside the verdict. Motion sustain ed, verdict set aside, and new trial granted.
Argued before WILSON, C. J., and PHIL BROOK, DUNN, DEASY, BARNES, and PATTANGALL, JJ.
R. E. Harvey, of Portland, for plaintiff.
I, Bernstein, of Portland, for defendant.
This action is of tort for personal injury. It is against an employer. The plaintiff being under 21 years of age, his next friend prosecutes for him. The suit is at common law. The defendant pleaded the general issue. Plaintiff has the verdict. The case is here on exception to the refusal of the trial judge, at the close of all the evidence, to direct a verdict for the defendant, and on general motion by the defendant to set aside the verdict.
Employers are legislatively divided into two classes, small employers and large employers. A small employer is one having five or less workmen in the same industry or business, or, when he has different businesses, five or less workmen in a business single in kind, regularly. R. S. c. 50, §§ 2 and 3; Nadeau v. Caribou, etc., Co., 118 Me. 325, 108 A. 190. This defendant was a small employer. Therefore common-law rules govern.
Primarily, the plaintiff maintains that the defendant failed in his duty, implied from the relation of employer and employee, to exercise ordinary care to provide a reasonably safe and reasonably suitable wood-sawing machine for the use of the plaintiff; secondarily, that the defendant failed in his duty to use like care to keep the machine in reasonably safe and reasonably suitable conoition; thirdly, that through the actionable fault of the defendant, the place of employment was not reasonably safe and reason, ably suitable in that it was not sufficiently lighted. In the declaration is the allegation of the plaintiff's own due care, likewise that defendant's negligence was the proximate cause of the plaintiff's injury.
The bill of exceptions calls for but small attention. When the evidence on both sides had closed, the declared assertion that the defendant was the employer of the plaintiff, was in controversy. That question was for the jury. The exception therefore has no point, nor ever had. The exception is overruled.
The jury having settled the question that plaintiff was in the employ of the defendant, the motion to set aside the verdict, on the ground that it is against law and evidence, invites consideration.
On May 15, 1926, the day of his injury, the plaintiff was within 5 months of 18 years of age. He possessed the intelligence and understanding which were usual with boys of that age. He had aptitude for things mechanical.
For the period of nine months he had been working for the defendant, a fuel dealer in Portland. The work included converting bundled pine edgings into kindling. This is what the plaintiff was doing when he got hurt.
A circular saw mounted on a frame, the saw designed to be motor-driven through a slit or opening in the top of a traveling carriage, had been provided by the defendant. In operation, the carriage, with a bundle of wood upon it, was moved forward by the plaintiff, he being the sawyer, and the wood fed sidewise to the saw. In reverse movement the carriage would return to its original position. The construction of the sawing machine was quite simple and was open and exposed to view.
Prior to the contract of employment one of the V-shaped wooden supports of the frame of the machine had been broken. A board had been nailed across the break and the whole wrapped with rope. And the nuts were off the end of a rod or slide on which the machine carriage was moved forward and back. Because of these defects, and the consequent want of rigidity when the carriage was heavily laden, the saw would not always keep a true plane of rotation during the process of cutting.
That plaintiff fully appreciated the extent of the peril to which he was exposed, and was apprehensive of personal injury, his own testimony clearly defines. After working two or three months, he called the defects to the notice of the defendant. The defendant assured the plaintiff that repairs would soon be made, and directed him to keep at work. Six months passed and the machine still remained unrepaired. The plaintiff knew it all the while. Although he had been aware all along, not only from his own experience, but from observation of the operation of the machine by other sawyers, that at times the saw ran out of line, he never mentioned this nor spoke again relative to the defects.
It was nearing the end of the working day, on May 15th, between the hours of 5 and 6 of the clock, and was "awful dark" in the comer...
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