Perkins v. Oxford Paper Co.

• Citation: 104 Me. 109,71 A. 476
• Parties: PERKINS v. OXFORD PAPER CO.
• Decision Date: 17 March 1908
• Court: Supreme Judicial Court of Maine (US)

71 A. 476

104 Me. 109

PERKINS

v. OXFORD PAPER CO.

Supreme Judicial Court of Maine.

March 17, 1908.

Exceptions from Supreme Judicial Court, Oxford County.

Action on the case by Frank C. Perkins, administrator of the estate of Arthur N. Perkins, deceased, against the Oxford Paper Company. Verdict for plaintiff, and defendant filed exceptions and moves to have the same set aside. Motion sustained, and verdict set aside.

Action on the case brought under Rev. St. 1903, c. 89, § 9, by the plaintiff as administrator of the estate of Arthur N. Perkins, deceased intestate, for the benefit of the widow of said Arthur N. Perkins and against the defendant corporation to recover damages for the death of the said Arthur N. Perkins; such death having been caused by the alleged negligence of the defendant corporation. The declaration in the plaintiff's writ is as follows: "In a plea of the case, for that the defendant on the 23d day of November, 1906, was the owner and operator of a certain mill, with its machinery appurtenances and appliances, situated In Rumford, in the county of Oxford, and state of Maine, used for the manufacture of pulp and paper. And the plaintiff avers that it was then and there the duty of said defendant to provide a safe and suitable place for its employés to perform their labor, and also safe and suitable machinery and appliances. And the plaintiff avers that the said defendant on said 23d day of November was unmindful of its duty in this behalf, in that it then and there unlawfully and negligently failed to provide either a safe and suitable place for his intestate to perform his labors, or safe and suitable machinery or appliances, as required by law. And the plaintiff avers that as a part of the machinery of said mill owned and operated by the defendant as aforesaid is an engine numbered 4, with all of its appurtenances and appliances, about which it was the duty of the plaintiff's intestate then and thereto be employed. And it is averred that as a part of the appliances of said mill, then and there owned and operated by the said defendant, was a large belt known as the 'speed' or 'power' belt, which was then and there fastened or connected with a large wheel or pulley on said engine, and then and there extending to the main shaft in said mill, and which moved with great rapidity. And it is averred that the defendant then and there unlawfully, carelessly, and negligently connected the two ends of said belt by means of bolts, clasps, and nuts, a system of connection known to the mill trade as 'Jackson hooks'; that the said defendant then and there unlawfully, carelessly, and negligently allowed said bolts by which the said belt was then and there connected to project a great distance from the belt. And the plaintiff avers that on the said 23d day of November, and for a long time prior thereto, his intestate, Arthur N. Perkins, was then and there employed by the said defendant for hire, in its mill, as aforesaid, as engineer, and that it was the duty of the plaintiff's intestate to labor around and about the said engine, its appurtenances, and appliances. And the plaintiff avers that while his intestate was then and there employed about said engine in the regular performance of his duty, and while in the exercise of due care and caution, and without fault on his part, due wholly to the unlawful carelessness and negligent manner, by which the said belt was then and there connected, by the said defendant, your plaintiff's intestate was then and there suddenly and forcibly struck in the head by one of the bolts aforesaid, then and there receiving injuries from which he then and there immediately died. Whereby Lula Perkins, wife of the said Arthur N. Perkins, for whose benefit this action is brought, suffered great loss and damage, and whereby and by virtue of the statute in such case made and provided an action has accrued to the plaintiff in his capacity as administrator, as aforesaid, to have and recover of the said defendant said loss and damage for the benefit of the said Lula Perkins, yet the said defendant, though often requested, has not paid the same, but neglects and refuses so to do, to the damage of said plaintiff (as he says) the sum of $5,000, which shall be made to appear, with other due damages, and have you there this writ with your doings therein."

Plea the general issue. Tried at the May term, 1907, Supreme Judicial Court, Oxford county. Verdict for plaintiff for $3,250. The defendant then filed a general motion to have the verdict set aside. Several exceptions were taken by the defendant during the trial but the same were not considered by the law court.

The case fully appears in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, and CORNISH, JJ.

Matthew McCarthy and Wm. H. Newell, for plaintiff.

Bisbee & Parker, for defendant.

CORNISH, J. This is an action on the case brought under section 9 of chapter 89 of the Revised Statutes of 1903 for the benefit of the widow of Arthur N. Perkins, the intestate, for the death of said intestate caused by injuries received by him while in the employment of the defendant corporation. The case is before this court on motion and exceptions by defendant.

There was little conflict of testimony. The undisputed facts are as follows: Arthur N. Perkins at the time of the accident was 32 years of age, and had been employed by the defendant as an engineer for about five years. He had charge of engines No. 3 and 4 and their appurtenances, situated in machine room No. 2. These engines and the shafting and pulleys connected therewith were similar in construction. A large belt known as the "step speed belt" extended from the pulley on the front cone shafting (said pulley being set between piers on the floor) to the machine shafting at the upper part and rear of the room. The lower side of this belt moved from the machine shafting downward on an incline toward the pulley, and its height from the floor varied from a few inches at the pulley to eight or nine feet at the machine shafting. The belt was 18 inches wide, fastened together with "Jackson hooks," so called, the nuts and bolts of which projected about one inch from the surface, and, when the machinery was in operation, as at the time of the accident, the belt moved at the rate of a mile a minute. The distance on the floor from the center of the front cone shafting to a point beneath the center of the machine shafting was about 30 feet.

Standing by the front cone shafting, and looking toward the belt and the rear wall, one would see at the left of the belt and about 8 inches from it two upright steel columns, the nearest 9 feet distant and the furthest 21. Between the furthest column and the rear wall, a distance of about 9 feet, but a little toward the left, was a pump, so placed that there was a clear space of 3 1/2 feet between it and the column. At the left of these columus was a wide and unobstructed passageway.

On the other side, at the right of the speed belt and about 10 feet from it, was a cross-belt connecting the front cone shafting with the rear cone shafting. The engineer at times, in the course of his duty, had occasion to visit this intervening space, and this could not be reached from the broad passageway on the left without going under the speed belt at some point At no point between the first and second columns could a man cross without stooping, but at any point beyond the second column stooping was unnecessary, as the height of the belt varied from six feet three inches to nine feet. At the time of the accident, Mr. Perkins started to go beneath the rapidly moving belt at a point between the two steel columns where the height of the belt above the floor was 4 feet 9 3/4 inches. His height was five feet four inches. As he crossed, he stooped, but not enough. His head was struck by the hooks in the belt, and he was knocked to the floor in an unconscious condition. The accident occurred at about 10 a. m. November 23, 1906, and he remained unconscious until 1 p. m. on November 26th, a period of 75 hours, when he died.

1. Form of Action.

The first point raised by the defense is that this action cannot be maintained as a matter of law because death was not immediate.

It is admitted that the intestate survived 75 hours after the injury, taking nourishment that was administered, but was in an unconscious condition during the whole period, so that even an operation upon the skull was performed without the use of anæsthetics. The question is raised sharply whether sections 9 and 10 of chapter 89 of the Revised Statutes of 1903 should be construed to cover such a case. The history of this legislation and the construction put upon it by the court are interesting and important At common law no value was put upon human life to be recovered in the way of damages. At common law, too, a right of action to recover damages for personal injuries did not survive. But by an early statute, now Rev. St. 1903, c. 89, § 8, those actions that could be maintained at common law for personal injuries were made to survive, and could be prosecuted by the personal representatives whether an action had been brought in the lifetime of the injured party or simply the cause of action had accrued and the Injured party had died before suit was actually brought.

A remedy by indictment against steamboats and railroads in case the life of a person was lost through the carelessness of the respondent's servants was provided by chapter 70, p. 59, Pub. Laws 1848, and the limit of recovery extended to $5,000 by chapter 101, p. 159, Pub. Laws 1855. This statute was construed to cover cases of immediate death only. State v. Maine Central Railroad Company, 60 Me. 491. That case came before the court on a demurrer to the indictment, which alleged that the accident occurred on June 27th, and death ensued on June 29th, but did not state whether the injured party was in a conscious or...