Wormell v. Maine Cent. R. Co.

• Decision Date: 04 June 1887
• Citation: 78 Me. 397,10 A. 49
• Parties: WORMELL v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

10 A. 49

78 Me. 397

WORMELL

v. MAINE CENT. R. CO.¹

Supreme Judicial Court of Maine.

June 4, 1887.

On motion and exceptions by defendant from superior court, Kennebec county.

Action on the case for personal injuries alleged to have been caused by defendant's negligence. The verdict was for the plaintiff in the sum of $4,000, and the defendant filed a motion for a new trial, and also alleged exceptions. The opinion states the material facts.

Walton & Walton and F. A. Waldron, for plaintiff. Baker, Baker & Cornish, for defendant.

FOSTER, J. The plaintiff was at work as a locomotive machinist in the car-shops of the defendant corporation at Waterville. On the day the injury was received he was directed by the foreman of the car-shops to go out with an engineer, and move an engine from the paint-shop near by to the repair-shop where the plaintiff worked. The engine with which the moving was to be done was then standing on the turn-table in the machine-shop. In order to move the engine from the paint-shop to the repair-shop, it became necessary, first, to remove certain cars which were on the track in the yard. The plaintiff went out, and while waiting for the switches to be turned, Philbrick, the master mechanic of the road, came out, and asked him if he knew how to shackle the passenger car that stood upon the paint-shop tracks, and the plaintiff replied that he did not know how to shackle any cars. Thereupon the master mechanic took him to the car, and explained the peculiar danger that might arise from the shackling of a passenger car, no special instructions being given in relation to shackling flat cars, but told him he must not get in line of the drawbars, and finally told him that he guessed he could get along by being careful. The flat cars stood next to the engine, and had to be coupled first. In attempting to couple the tender to the first flat car he made several efforts, but failed, as he claimed, because the shackles were too short. Finally, when the engine and tender backed the third time, standing as he stood before, between the tender and the flat car, with the tender on his right and the flat car on his left, while adjusting the shackle with his right hand, he allowed the wrist of his left hand to rest over the edge of the dead-wood of the flat car, directly over its drawbar, and directly in front of the buffer upon the tender, which is a projecting arm out of which the shackle extends, and, failing to connect the shackle with the drawbar of the car, the buffer came back against and crushed his left hand, necessitating its amputation.

The plaintiff bases a recovery against the defendant corporation upon two grounds,—that the implements and means furnished were not proper and suitable for the work which the plaintiff was directed to do; and that Philbrick, representing the corporation as a vice-principal, placed him in a position of peculiar peril without notifying him of the danger.

The latter position is the one most strenuously urged and relied on by the plaintiff, who recovered a verdict against the defendant, and the case is now before this court on motion to set aside the verdict, and also on exceptions. With the view which the court has taken of the case it does not become necessary to determine in what capacity Philbrick was acting, whether as vice-principal or as a fellow-servant with the plaintiff, inasmuch as it is the opinion of the court that the verdict cannot be upheld upon other grounds. The action set forth is founded upon the charge of negligence. It is the gist of the action. To entitle the plaintiff to recover, he must prove such negligence, the omission of some duty, or the commission of such negligent acts on the part of the defendant as occasioned the injury to the plaintiff. If the injury was occasioned through his own neglect and want of ordinary care, or was the result of accident solely, the defendant being without fault, the action is not maintainable. "The negligence is the gist of the action, but the absence of negligence contributing to the injury, on the part of the plaintiff, is equally important." Brown v. European & N. A. Ry. Co., 58 Me. 387; Osborne v. Knox & Lincoln R. R., 68 Me. 51.

There is no presumption of negligence on the part of the defendant from the fact alone that an accident has happened, or that the plaintiff has received an injury while in the employment of the defendant. In the long line of decisions, both in this country and England, from Priestley v. Fowler, 3 Mees. & W. 1, to the present time, it has been held that the mere fact of the relationship of master and servant, without a neglect of duty, does not impose upon the master a guaranty of the servant's safety, but that the servant, of sufficient age and intelligence to understand the nature of the risks to which he is exposed, engaging for compensation in the employment of the master, takes upon himself the natural, ordinary, and apparent risks and perils incident to such employment. Coolbroth v. Maine Cent. R. Co., 77 Me. 167; Nason v. West, 78 Me. 257, 3 Atl. Rep. 911.

The relationship of master and servant may, and most frequently does, exist by simple mutual agreement that the servant is to labor in the service of the master. In such case the law holds that the terms of the contract are not fully expressed, and that there exists by implication reciprocal rights and obligations on the part of each which it will protect and enforce equally as if expressed by the parties. Among other things, it implies that each is to exercise ordinary and reasonable care. It implies that the master is to use ordinary care in providing and maintaining suitable means and instrumentalities with which to conduct the business in which the servant is engaged, so that the servant, being himself in the exercise of due care, may be enabled to perform his duty without exposure to dangers not falling within the obvious scope of his employment. The implied duty of the master in this respect is measured by the standard of ordinary care. Hull v. Hall, 78 Me. 117, 3 Atl. Rep. 38. The law holds him to no higher obligation than this. Nor is the employer bound to furnish the safest machinery, instrumentalities, or appliances with which to carry on his business, nor to provide the best methods for their operation, in order to save himself from responsibility, resulting from their use. If they are of an ordinary character, and such as can with reasonable care be used without danger, except such as may be reasonably incident to the business, it is all that the law requires. Railroad Co. v. Sentmeyer, 92 Pa. St. 276. Thus it has been held that where an injury happens to a servant while using an instrument, an engine, or a machine in the course of his employment, the nature of which he is as much aware of as his master, and in the use of which he receives an injury, he cannot, at all events, if the evidence is consistent with his own negligence in the use of it as the cause of the injury, recover against his master, there being no evidence that the injury arose through the personal negligence of the master; and that it was no evidence of such personal negligence of the master that he had in use in his business an engine or machine less safe than some other in general use. Dynen v. Leach, 26 Law J. Exch. 221. And in accordance with the same principle it was held in Indianapolis, B. & W. Ry. v. Flanigan, 77 Ill. 365, that a railroad company was not liable for an injury received by an employe while coupling cars having double buffers, simply because a higher degree of care is required in using them than in those differently constructed.

So in Fort Wayne, etc., R. R. v. Gilder sleeve, 33 Mich. 133, it was decided that a railroad company which used in one of its trains an old mail car, which was lower than others, was not liable to its servant, who knowingly incurred the risk, for an injury resulting from the coupling of such old car with another, though the danger was greater than with cars of equal height.

Every employer has the right to judge for himself in what manner he will carry on his business, as between himself and those whom he employs, and the servant having knowledge of the circumstances must judge for himself whether he will enter his service, or, having entered, whether he will remain. Hayden v. Smiths Me, 29 Conn. 548; Buzzell v. Laconia Manvf'g Co., 48 Me. 121; Shanny v. Androscoggin Mills, 66 Me. 427; Coombs v. New Bedford Cordage Co., 102 Mass. 585; Ladd v. New Bedford R. Co., 119 Mass. 413.

Moreover, the law implies that where there are special risks in an employment of which the servant is not cognizant, or which are not patent in the work, it is the duty of the master to notify him of such risks; and, on failure of such notice, if the servant, being in the exercise of due care himself, receives injury by exposure to such risks, he is entitled to recover from the master whenever the master knew, or ought to have known, of such risks. It is unquestionably the duty of the master to communicate a danger of which he has knowledge and the servant has not. But there are corresponding duties on the part of the servant; and it is held that the master is not liable to a servant who is capable of contracting for himself, and knows the danger attending the business in the manner in which it is conducted, for an injury resulting therefrom. Lovejoy v. Boston & L. R. R., 125 Mass. 82; Ladd v. New Bedford, R. Co., supra; Priestley v. Fowler, supra.

It is his duty to use ordinary care to avoid injuries to himself. He is under as great obligation to provide for his own safety, from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part, as the master is to provide it for him. He may, by the want of ordinary care, so contribute to an injury sustained by himself as to destroy any right of action that might under other circumstances be available to him. These rules are...