Bryant v. Great Northern Paper Co. , 100 Me. 171 ( 1905 )

Wiswell, C. J.

While the plaintiff was engaged in his work of oiling certain machinery and shafting in the defendant’s pulp mill, he, in some way, became caught in the cogwheels of a plunger pump and sustained serious injury. To recover for this injury he .brought this action, and, at the- trial, recovered a verdict with damages assessed at $2500. The case comes here on the defendant’s motion for'a new trial. • . .

The plaintiff’s first cause of complaint, is that there might, have been, at the place where he was caught between the cogwheels, guards or a protection of some kind which would have prevented an accident of that nature, and that the defendant was negligent in. failing to provide'such protection as was feasible. Assuming the truth of the plaintiff’s contention in this respect, the complete answer to it, and one which should prevent his recovery upon that ground, is, that the plaintiff had been engaged in this particular work, oiling this identical pump, from early in October until the time of the accident on February 22, 1903, a period of nearly five mouths, except that he had been out of the mill during that time, on account of sickness, for about five weeks. If there should have been some protection other than was provided by the defendant, the plaintiff knew that there was none, and by his continuing in the employment for this period of time with a full knowledge of the absence of such projection as he claims should have been furnished, he assumed the risk attendant upon the' performance of his work upon this machinery in the condition in which it was.

Another cause of complaint is this: prior to the time that the plaintiff was absent from his work on account of sickness, for a period of about five weeks, this pump was driven by steam power and the two cogwheels connected therewith, and between which he was caught, revolved outward or away from each other, on top. While he was out of the mill, the steam engine was replaced with an electric motor, and the direction of the revolution of the cogwheels was changed so that they revolved inward or towards each other, on top, thereby, it is claimed, increasing the chance' of injury to him. And of this change he complains that he received no notice and had no knowledge. But from the time that the plaintiff came back to his work, after his absence of five weeks, and after the direction of the revolution of the wheels had been changed, he worked as an oiler upon this same pump and in the immediate vicinity of the intersection of these cogwheels for four weeks, oiling the bearings twice each day. One of these wheels was forty-two inches in diameter, about twelve feet in circumference, and its revolution was only twenty-six times a minute, so slow that anyone whose duty called him into its vicinity could easily observe the direction of its revolution. Not only this, the reversal of the revolution of the wheels caused a reversal of the crank shaft which made a complete revolution with each revolution of the larger wheel. There was a receptacle for oil on top of this crank shaft which had to be supplied with oil while in motion; to do this, the oiler was obliged to insert the nozzle of his oil can in the oil receptacle and follow it so long as he could ¡n its revolution. Revolving in one direction, this was done while the crank shaft was going up, in the other, while it was going down. So that the oiler, not only had ample opportunity to observe the change in the direction of the revolution of the wheel by the use of his sense of sight, but this change in the movement of the crank shaft also caused him to entirely change his movements in the performance of his duty of oiling the shaft.

If, as he says, he did not observe in any way that this change had been made during the period of four weeks that he was at work, upon the pump after the change had been made, it was, we feel satisfied, simply the result of his thoughtless inattention. The duty of an employer to give notice to his servant of dangers in the operation ■of machinery, or of changes in machinery which increase or which change the nature of dangers to be avoided, is confined to such dangers or changes as are not known to the servant, or to such as would not naturally be discovered by him by the exercise of the powers of observation on his part. It is not the duty of the employer to give his servant notice of anything which the latter has a perfect opportunity to know himself by observation, if he exercises that reasonable diligence which the law requires of him to protect himself from harm.

After a careful consideration of the whole testimony, and notwithstanding the verdict of the jury, we feel satisfied that the unfortunate accident to the plaintiff cannot be attributed to any fault upon the part of the defendant, that consequently he is not entitled to be compensated in damages, and that the verdict was clearly wrong.

Motion sustained. • New trial granted.