Wason v. West

• Decision Date: 17 May 1886
• Citation: 78 Me. 253,3 A. 911
• Parties: WASON v. WEST and others.
• Court: Maine Supreme Court

3 A. 911

78 Me. 253

WASON

v. WEST and others.¹

SUPREME JUDICIAL COURT OF MAINE.

Filed May 17, 1886.

On motion for new trial by defendants on the ground that the verdict was against law and evidence.

Hamilton & Haley, for plaintiff.

H. Fairfield, for defendants.

FOSTER, J. The defendants are lessees of a baker's shop at Old Orchard. In the rear of the building, and near to it, was the oven, first built by the lessor in the summer of 1883, in accordance with the stipulations in the lease from him to these defendants. This oven had been in use during that season, and, owing to the high degree of heat necessary to its successful operation, some of the brick around the firebox had melted, rendering it necessary to rebuild it. Accordingly, the next summer, the lessor, having his attention called to it, caused the oven to be rebuilt, employing a mason of many years' experience, the same man who had constructed it the year previous. In the formation of the arch or roof of the oven the bricks were laid over a "form" composed of damp compacted sand. A few days after the oven was completed, the defendants, being ready to commence that season's business, engaged the plaintiff to go to Old Orchard with one of their workmen by the name of Roaks, to remove the sand from the oven. After having taken it nearly all out by means of shovels and other tools furnished him by Roaks, he crawled into the oven for the purpose of cleaning out the corners. While in there, the oven fell in upon him, burying him in brick, sand, and mortar, and from which situation he was rescued a few minutes later, having received some slight injuries, for which this action is brought.

The principles relating to the liability of the master for injuries received by the servant in the course of his employment are well defined and have been frequently stated in judicial decisions. It only becomes necessary to make a proper application of them here, and by those well-settled principles determine whether the verdict of the jury should be sustained. The action set forth in the plaintiff's writ is founded on a charge of negligence. It is the gist of the action, and, being alleged, it must be proved. The mere fact that the plaintiff may have sustained an injury while in the employment of the defendants, or upon their premises, raises no presumption of wrong on their part, and is not sufficient upon which to found a verdict. Negligence on the part of the defendants being the basis upon which the plaintiff founds his action, it is to be proved. Presumption of negligence from the fact alone that an accident has happened will not do; for, if there is any presumption in such a case, it is that the defendants have complied with those obligations which rest upon them equally with other men. There are cases, to be sure, like those against depositaries, innkeepers, and common carriers, where property is lost which is confided to them, or where the nature of the accident attending circumstances is such that negligence may be presumed from the act. But in the ordinary class of cases, of which the one before us forms no exception, the burden lies upon the plaintiff to prove the negligence which he alleges. And while it is true that this may be done by proof of facts from which it may reasonably be inferred that the defendants' negligence caused the injury complained of, it is equally true that a mere scintilla of evidence is not sufficient. It must be evidence having legal weight, and upon which the verdict of a jury would be allowed to stand. Connor v. Giles, 76 Me. 134; Beaulieu v. Portland Co., 48 Me. 296; Cornman v. Railway Co., 4 Hurl. & N. 784; Toomey v. Railway Co., 3 C. B. (N. S.) 149; Cotton v, Wood, 8 C. B. (N. S.) 568. And, in order for the plaintiff to be entitled to recover in this action, it must be shown that the defendants owed some duty to him, and that there was a neglect of that duty. If the plaintiff received an injury as the result of an accident solely, and the defendants were without fault, the action is not maintainable. Ever since the decision in the case of Priestley v. Fowler, 3 Mees. & W. 1, in the English court of exchequer, it has been held that the mere fact of relationship of master to servant, without a neglect of duty, does not impose upon the master a guaranty of the servant's safety.

The plaintiff, however, alleges that there was such neglect on the part of the defendants in not notifying him of what he claims to be the insufficient and dangerous construction of the oven, of which the defendants were aware, but of which the plaintiff was ignorant, and his claim is that he was employed by the defendants to enter this oven which was so defectively constructed that it fell upon and injured him. Before the plaintiff could be entitled to a recovery upon the allegations set up in his writ, it must be shown that the defendants knew, or ought to have known, of the dangerous condition of the oven, and that the plaintiff did not know, or could not reasonably be held to have known, of the defect, if such it was, which led to the injury. Knowledge on the part of the defendants, or such lack of it as would render them culpably liable and ignorance on the part of the plaintiff of the alleged danger or defect, are essential prerequisites to the maintenance of this action. Beach, Neg. § 123; Shear. & R. Neg. § 99.

Thus, in the recent case of Griffiths v. London & St. Katharine Docks Co., 12 Q. B. Div. 495, afterwards affirmed in the high court of appeal, 13 Q. B. Div. 259, the plaintiff, at the time of the accident, was in the employment of the defendant company, when one of the large iron doors upon the defendant's premises where the plaintiff was at work suddenly gave way, and fell upon the plaintiff. The court there say:

"If the master employs a servant to do work for him, not knowing of any special or latent danger in...