Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1907-08-13
Somerset County Rescript.

j.
This was an action on the case tt
recover damages for injuries sustained
by the plaintiff while employed by the
defendant company in its mill In Feb
ruary, 1903.
The case was tried at the December
term. 1903. of the supreme Judicial
court and the verdict was for the
plaintiff. On motion of the defendant
a new trial was granted by this court.
The case was again tried at the De-
cember term. 1905. and at the conclu-
sion of the plaintiffs evidence the pre-
| siding justice ordered a nOnsuit. To
this ruling the plaintiff excerpts and
makes the writ, pleadings and evidence
a part Of his bill of exceptions. 4,
The evidence introduced by the
plaintiff shows that he was employed
by the defendant company from the
| first part of October to December. l9o2,
| about three months, that he was tenn
porarily absent for five weeks on ac-
count of an injury resulting IN the loss
of finger, and returned to his work
January oath. 1908; that during his alb
sence the steam engine which pro-
PEELED the plungcr pump whose gearing
he oiled had been replaced by an elec-
trio motor and the direction OF the coz
wheels connected with this pump was
changed so that they revoived inward
towards each other, instead OF reVoi'-
ing as formerly outward ana away
from each other: that no notice was
given to the plaintiff of this change'
and he did not in fact know that II nad
been made. After his return ne con-
tinued his work of oiling this bearing
twice day for twenty-eight days pc
fore the accident. While engaged In
his duties he was injured by being
caught in the revolving cog wheels. He
was at the time standing on ladder
the lower end of which rested on the
floor and the upper end upon the drlV-
ing shaft. This shaft revolved the
same way as the larger wheel making
it's revolutions at the same time
twenty-six a minute. The direction
of the revolutions of both had been
reversed by the change mentioned.
Tho plaintiff set out his right to re-
cover on account of the defendants
negligence in two counts, in sub
stance; first, that there were no guards
or protection to the machinery upon
which he was required to work and.
second that the change in the direction
of the revolution of the cog wheels
connected with plunger pump IN his
absence rendered the machinery more
dangerous, and that he received no no.
tice from the defendant and had no
knowledge of the change.
The court in sustaining the de-
PENDANTS motion for a new trial, held
that the plaintiffs claim to recover by
reason of the defendants omission to
provide guards and protection to the
machinry was untenable as he by con-
tinuing his employment for nearly five
months oling this Identical pump.
knowing that no guards had been fur
nished. assumed the risk incident to
his work upon the machinery as it was.
At the last trial and also before this
court the plaintiff has relied especially
upon his right to recover under the al
legations of the second count. The
evidence offered at the first trial upon
this issue was fully considered by the
court and the conclusion was reached
that the plaintiff during the twenty
eight days he was engaged, Oiling the
bearings twice each day, must have
observed that the direction of the shaft
against which his ladder rested. and
of the slow moving large wheel. had
been changed; or if he failed to observe
the change it must have been the re-
suit of his thoughtless inattention, that
he is rot entitled to be compensated in
damages, and that the verdict was
clearly wrong. .,..
When upon the unquestioned facts it
is apparent that the plaintiffs action
cannot be maintained. it is not only
competent but proper for the presiding
judge so to declare by directing a nom
suit; and it would be useless for this
court to reverse its own action by suS-
tanning the exceptions of the plaintiff,
unless the evidence on which the nom
suit was ordered differs materially
from that introduced at the first trial,
either as being of greater weight or
proving now facts.
No new material fact as to the con-
ditiOns existing at the time of the ac-
cident is shown at the second trial.
and the question whether it was error
for the presiding justice to order the
involuntary nonsuit depends upon the
and weight as evidence OF
the testimony of three witnesses, VINO
did not testify at the first trial, to show
that the change in the machinery rem
derng it more dangerous was not an
obvious hazard which the plaintiff as
sumed. The purport of their tesu-
mony is that they worked around TINS
pump. after the change and before
the accident, and did not notice that
tho gears had been changed.
The standard of care which the ID"
REQUIRES of the servant is that which a
cautious and intelligent
person would exercise under the same
and the hazards ana
risks attendant upon his employment
which he assumes are those which are
open and obvious, of which he has been
informed, or which he ought to nave
known by using reasonable care.
The court decided upon the evidence
at the first trial that the
accident was due to the plaintiffs want
Of due care. The testimony of wit
nesses that they failed to observe mat
a change had been made in the direc-
ton of the motion of the crank shaft
and it's gears is Of doubtful admissi-
bility. The circumstances in which