Small v. Allington & Curtis Mfg. Co.

• Decision Date: 29 January 1901
• Parties: SMALL v. ALLINGTON & CURTIS MFG. CO.
• Court: Maine Supreme Court

48 A. 177

91 Me. 551

SMALL

v. ALLINGTON & CURTIS MFG. CO.

Supreme Judicial Court of Maine.

Jan. 29, 1901.

(Official.)

On motion from supreme Judicial court, Cumberland county.

Action by Albert E. Small against the Alllngton & Curtis Manufacturing Company to recover for personal injuries. Verdict for $500 for plaintiff. Defendant moves for a new trial. Motion granted.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

Enoch Foster and O. H. Hersey, for plaintiff.

H. R. Virgin and F. C Payson, for defendant.

WISWELL, C. J. Action to recover for personal injuries alleged to have been caused by the defendant's negligence. The verdict was for the plaintiff, and the case comes here upon the defendant's motion for a new trial.

At the time of the accident the plaintiff was in the employ of the defendant, and was engaged with others in the work of hoisting and placing in position a large metal appliance to be used for the purpose of collecting sawdust and shavings, and known as a "dust collector." The defendant, a corporation doing business in the state of Michigan, had made a contract with the Williams Manufacturing Company of Portland to furnish for the latter this dust collector, and to place the same in position on top of the boiler house of its plant. This appliance had arrived in Portland, the framework within which it was to be placed had been constructed by the manufacturing company as provided in the contract, and the plaintiff and other employes of the defendant had commenced hoisting the collector by means of ropes and blocks, sometimes called a "double fall and tackle." Just before the accident the collector had been hoisted nearly, but not quite, far enough, when the two blocks came together, and it became necessary to unfasten the tackle and rearrange the blocks so that the additional hoisting could be accomplished. To do this, it was necessary to temporarily secure the collector in place while the fall and tackle was unfastened and rearranged.

The plaintiff and other servants of the defendant, fellow servants of the plaintiff, had placed planks, blocks, and props under the collector for this purpose, and the plaintiff was on top of the collector, unfastening the tackle, when it fell a few feet, and the plaintiff was thrown to the roof of the boiler house, sustaining some, but not very serious, injury.

There is no intimation that any of the appliances furnished by the defendant were insufficient for the purpose, or that there was not an abundance of suitable materials of all kinds with which to do this work of hoisting. Nor is there any claim made that the servants employed by the defendant were incompetent or insufficient in number, and no allegation of that kind is contained in the writ.

The accident was unquestionably caused by the failure of those engaged in securing this collector in its temporary position, while the tackle was to be unfastened, to exercise sufficient care. But this was the fault of the plaintiff and his fellow servants, or some one or more of them. The defendant had performed its full duty when it had provided suitable appliances necessary for the work of hoisting and placing in position this collector, and had employed competent and sufficient workmen.

But it is urged that the defendant's superintendent, by reason of his entire superintendence of this work, and of the absence of the employer, was not a fellow servant of the plaintiff, but that he was a vice principal; that he had the...