Nadeau v. Caribou Water, Light & Power Co.

• Decision Date: 20 November 1919
• Citation: 108 A. 190
• Parties: NADEAU v. CARIBOU WATER, LIGHT & POWER CO.
• Court: Maine Supreme Court

108 A. 190

NADEAU

v. CARIBOU WATER, LIGHT & POWER CO.

Supreme Judicial Court of Maine.

Nov. 20, 1919.

On Motion and Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Action by Eli Nadeau against the Caribou Water, Light & Power Company. Verdict for plaintiff. On. exceptions to refusal to give requested instructions, and on motion for a new trial. Motion overruled. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, WILSON, and DEASY, JJ.

W. P. Hamilton, of Caribou, and Shaw & Thornton, of Houlton, for plaintiff.

Cyrus F. Small, of Caribou, and Powers & Guild, of Ft. Fairfield, for defendant.

DEASY, J. The plaintiff, an employe of the defendant, brought an action for personal injuries alleged to have been caused by the defendant's negligence. The declaration was in common-law form, setting forth the plaintiff's due care. The defendant seasonably requested the presiding justice to give the following instructions to the jury:

"I. The burden of proof is on the plaintiff to show that he was himself free from contributory negligence, and he cannot recover in this action unless he was free from the contributory negligence.

"II. If the plaintiff would preclude the defendant from making the defense of contributory negligence, he must show that the defendant had more than five workmen or operatives employed in the same business in which the plaintiff was employed at the time of the injury."

The instructions the presiding justice refused to give, either in form or in substance, and charged that—

"In this case it is not a defense that the employe was negligent."

A verdict was rendered for the plaintiff in the sum of $2,412.50, and the case comes here on exceptions to this ruling and refusal to rule, and also on a motion for anew trial.

Motion.

The defendant undertook to thaw, by electric process, certain frozen water pipes for Jerry Smith, of Caribou. The plaintiff, an employe of the defendant, was directed to do this work. The thawing machine was set up about 500 feet from the main power line in the street. The plaintiff was directed to string the necessary transmission wires on temporary posts 4 or 5 feet high, which had been previously set in the ground. After the plaintiff had strung the wires and started the thawing machine, he discovered that one of the posts carrying the wires was leaning and in danger of falling, so that the wire would come in contact with the ground, a situation that he had been instructed to avoid. He restored the post to its former upright position and turned to find something to use to make it more secure. The post again fell. The wire carried upon it came in contact with the plaintiff's hand and caused the injury sued for.

The plaintiff was not an electrician, but had had some experience in the kind of work he was engaged in doing at the time of the accident. He charges in his writ that the defendant was negligent in not properly instructing him as to the work and warning him of its perils, and also and chiefly that the defendant was negligent, in that the posts were—

"carelessly, negligently, and unsecurely set up and established on the ground, so that the same were not suitable for the carrying of electric wires charged with electric current."

The jury found upon full and appropriate instructions that the defendant was negligent and that its negligence was the proximate cause of the accident. This finding was abundantly justified by the evidence.

The jury did not determine that the plaintiff was in the exercise of due care. Nor did they find the contrary. This question was not submitted to them. The presiding justice ruled that contributory negligence was not a defense to this action. Under the head of "Exceptions," we consider this ruling as to its correctness, and as to whether, if erroneous, the exceptions to it should be sustained.

The defendant contends that the verdict is excessive. The plaintiff received a severe electric shock. His hand was cruelly burned. He was totally disabled about four months. One of his fingers had to be amputated. Another is stiff and useless, and peculiarly sensitive, so that he has to wear a mitten or glove when the weather is at all cold. His earning capacity is in a considerable degree impaired. He gained some part of his livelihood by playing the violin. This source of income is lost.

If the facts had been submitted to the court, it might have awarded a smaller sum. But should the verdict for this reason be set aside?

The expenses incurred by the plaintiff can be determined with precision. His loss of earning capacity to the time of trial may be computed with approximate exactness. But his loss in future earnings cannot be made certain. Compensation for pain and suffering must be based on an exercise of judgment, the correctness of which cannot be tested by any known process of analysis.

As to the remuneration which will make this plaintiff whole, the judgment of one man, or one jury, or one court, may differ very widely from that of another, and no human intelligence can decide which is right. The law submits this question and other questions of fact to the judgment of a jury. The jury's judgment honestly and understandingly exercised is conclusive. The court's judgment cannot be substituted for that of the jury. When satisfied that the jury did not understand the case or the evidence, or made inadvertent errors in computation or otherwise, or based its verdict on prejudice or sympathy rather than on reason or judgment, it is the duty of the court to order a new trial. In this case the verdict, though large, is not so grossly excessive as to warrant the conclusion that it represents anything but the deliberate and honest judgment of the jury.

Exceptions.

Before the happening of the accident resulting in the plaintiff's injuries the workmen's Compensation Act had been enacted. This was embodied in R. S. c. 50, as sections 1 to 48. Since the accident occurred it has been re-enacted with modifications as chapter 238 of the Public Laws of 1919. The ruling and refusal were in accordance with the justice's construction of certain of the provisions of the Workmen's Compensation Act. The main purpose of this act is the creation of a new and wider remedy for victims of industrial accidents, and a new tribunal for the administration of such remedy. It is involved in this case only in respect to its influence upon common-law actions. The statute is new and makes under certain conditions radical changes in legal theory and practice. For this reason the court deems it proper that this opinion take a somewhat wider range than a determination of the precise point involved would require.

The act provides that masters by the adoption of defined procedure may become "assenting employers." It makes assenting employers, so long as their status as such continues, immune to actions in the courts by employes injured in their employment. In actions by employes it deprives large non-assenting employers of certain common-law defenses.

Remedy of Employes against Assenting Employers.

Subject to one exception, hereinafter noted, assenting employers, irrespective of the number of workmen employed, are exempt from actions at law by employes injured in their service. The remedy by petition to the Industrial Accident Commission, a new remedy created by the act, is exclusive. R. S. c. 50, § 5.

The exemption is created by the following language:

"In the case of personal injury sustained by an employe in the course of his employment or of death resulting from personal injury so sustained, assenting employers shall be exempt from suits either at common law or under section nine of chapter ninety-two, or under sections forty-nine to fifty-six, both inclusive, of this chapter."

To avail himself of his exemption an assenting employer must plead and prove it. Salvuca v. Ryan & Reilly Co., 129 Md. 235, 98 Atl. 675; Spottsville v. Western States Portland Cement Co., 94 Kan. 258, 140 Pac. 356.

But an employe may elect to claim his common-law rights, giving due and seasonable notice of such election. R. S. c. 50, § 7.

The remedy of such an employe is by common-law action simply.

Remedy of Servants Who are Not Employes within the Meaning of the Statute. The immunity of assenting employers as guaranteed by the statute is only from actions by "employes." R. S. c. 50, § 5. There are several classes of servants who are not employes within the purview of the act. These classes are: (a) Farm laborers, (b) Domestic servants, (c) Masters of and seamen on vessels engaged in interstate or foreign commerce, (d) Casual employes, (e) Officials of the state and municipal or quasi municipal corporations (with certain modifications and exceptions). R. S. c. 50, § 1, par. 2.

These excepted classes are not employes within the meaning of the act. Their remedy is by common-law actions, except as the common law has been modified by statutes other than the Workmen's Compensation Act. Whether an employer of these excepted classes, who has become an assenting employer, may in a proceeding before the Industrial Accident Commission disclaim the status thus assumed, we do not now determine.

Remedy of Employes against Nonassenting Employers.

The act in effect divides nonassenting employers into two classes, to wit, those who employ five or less workmen or operatives regularly in the same business, and who may be called "small employers," and those who employ more than five workmen or operatives regularly in the same business, and who may be called "large employers." R. S. c. 50, §§ 2 and 3.

In any case, regardless of the number of workmen employed, the employe injured by the negligence of a nonassenting employer may bring and maintain his common-law action, alleging due care on his own part. He need not allege the employer to be non-assenting. As above stated, an assenting employer, who desires to avail himself of his exemption, must...