Wyman v. Berry

• Decision Date: 21 September 1909
• Citation: 75 A. 123,106 Me. 43
• Parties: WYMAN v. BERRY.
• Court: Maine Supreme Court

75 A. 123

106 Me. 43

WYMAN

v. BERRY.

Supreme Judicial Court of Maine.

Sept. 21, 1909.

Exceptions from Supreme Judicial Court, Kennebec County.

Action by Herbert Elmer Wyman, by next friend, against Albert P. Berry. Verdict for plaintiff, and defendant excepts, and moves for a new trial. Motion sustained.

Action on the case to recover damages for personal injuries sustained by the plaintiff, and caused by the alleged negligence of the defendant's vice principal. Plea, the general issue. Verdict for plaintiff for $2,166.03. The defendant excepted to certain rulings during the trial, and also filed a general motion for a new trial.

The case is stated in the opinion.

Argued before WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ.

Guy A. Hildreth, for plaintiff.

O. B. Clason and Geo. W. Heselton, for defendant.

SAVAGE, J. Action on the case for personal injuries alleged to have been caused by the negligence of the defendant's vice principal, for which the defendant is claimed to be responsible. The plaintiff recovered a verdict, and the case comes up on defendant's exceptions and motion for a new trial. We will consider the questions arising under the motion.

It appears that the defendant resides in New York, but owns a farm in Litchfield, which he visits several times a year. In 1906 there was living on the farm one Wood and his wife. Wood was employed by the defendant to take care of the stock and do whatever was necessary about the buildings, and to work on the farm whenever he could. In the defendant's absence he had charge of the farm, but, as the defendant claims, under his specific directions.

In May, 1906, the plaintiff, then 16 years old, was employed by one Frank Berry, a neighbor, and a relative of the defendant. Frank Berry, by arrangement with the defendant, was accustomed to work at times on the defendant's farm. Wood and Frank Berry were in the habit of "changing works"; Wood working for Berry, and at other times Berry working for Wood. But whether the defendant had knowledge of, and consented to, this practice is in dispute. For several days in the early part of May Frank Berry took the plaintiff with him to work on the defendant's farm, doing work which he had agreed with the defendant to do. May 11th Wood asked Frank Berry to let him have the plaintiff to work for him that day, and Berry consented. According to this arrangement, the plaintiff went to the defendant's farm and worked with Wood. Though working for Wood, the plaintiff remained the servant of Berry. Berry merely loaned him to Wood. After doing other things, Wood and the plaintiff undertook to cut up some straw for bedding. For this purpose they used a feed cutter, the power for which was supplied by a seven-horse power gasolene engine. Wood fed the straw into the machine, where it was cut by knives affixed to a shaft, revolving at a speed of about 900 revolutions a minute. The plaintiff was directed to remove the chopped straw after it left the machine, and carry it in a basket, or baskets, about 20 feet, and put it in a pile in the tieup. The chopped straw, as it came from the spout, so called, of the feed cutter, either fell on the floor, or, if the plaintiff was there with his basket, into the basket. Around the spout was a projection—a rim or flange—and from the outer edge of this flange, at the top, into the revolving knives, was a distance of from 3 1/2 to 4 inches. The spout was 11 inches wide, and about 16 inches from top to bottom, and the top of it was about 30 inches from the floor. The knives were covered by a hood, and were not visible to the plaintiff, either standing erect, or in any position he would naturally assume in removing the bedding. The plaintiff had never worked about a feed cutter before, and was not acquainted with its mechanism. The hood was not removed while he was present, and he did not know the exact position of the knives. But he undoubtedly knew that knives, or some cutting apparatus, was within the machine. While engaged in removing the bedding, the plaintiff put his right hand into the spout, under the flange far enough so that four fingers and a part of the thumb were cut off.

The defendant contends, in the first place, that Wood had no authority to hire the plaintiff from Prank Berry; that Wood was an agent with expressly limited powers and duties; that he had no duties to perform which required the assistance of others, and from which a power to hire could be implied, except in the use of the feed cutter; and that for this service the defendant had already provided other men. In short, the defendant claims that Wood was merely a farm servant, acting at all times under specific directions. The plaintiff, on the other hand, says that Wood was a vice principal, that he had authority to "change works" with Berry, or at least that he had authority, or was held out by the defendant as having authority, to hire a man to do such work as the plaintiff was employed by him to do.

We will not undertake to analyze, or give a synopsis of, the voluminous evidence on this much contested point. It is enough to say that if the defendant's contention rested upon this point alone, we should not disturb the verdict.

We assume, then, that the plaintiff was properly hired by Wood of Frank Berry to do the defendant's work. And though the plaintiff was technically still a servant of Prank Berry, yet having been put by Berry to work for the defendant, by authority of the defendant he became, as to that work, the servant of the defendant, and the defendant owed to him the duties which a master owes to a servant. This proposition is not denied, nor can it be successfully. Coughlan v. Cambridge, 166 Mass. 268, 44 N. E. 218; Clapp v. Kemp, 122 Mass. 481.

The plaintiff claims that the defendant failed to perform the duties he owed to him, in two respects: First, that the machine as it was being used was unsafe, in that it was being used without an elevator; and, secondly, that the defendant did not instruct him with regard to the machine, and did not warn him of the dangers attendant upon its use. As to the first proposition, only a word need be said. The machine was so constructed that an elevator could be used with it to carry away matter after it was cut. Such an elevator would presumably be useful when ensilage was being cut up. But the defendant was under no obligation to use the elevator. He might adopt any other means he saw fit for taking away the cut-up matter. How an elevator could have been of service on the occasion in question is not apparent.

If, however, there were any risks incident to the use of the machine as it was, which were not known by the plaintiff, or which were not obvious to nor appreciable by him, especially considering his youth and experience, and which would expose him to danger in the course of his employment, it was the defendant's duty to warn him of them, and give him appropriate instructions so as to secure his...