## Facts

- Mayhew, a mining specialist paid by the foot, was engaged by Sullivan Mining Company to open and explore an ore vein under a specific contract.
- Mayhew worked about 300 feet underground on a wooden platform and was familiar with an existing opening used in his work.
- After Mayhew began working, the company’s superintendent directed a worker to cut a new opening (“ladder-hole”) through the platform in a place where Mayhew would naturally walk.
- The ladder-hole was left without a railing or barrier and without a light, warning, or notice to Mayhew.
- Unaware of the new opening, Mayhew fell through the ladder-hole and suffered severe injuries.
- Mayhew sued for negligence based on the creation of the hole without guarding or warning.
- At trial, the court excluded the company’s proposed evidence regarding mining custom about whether ladder-holes are typically left without railings or warnings; the jury awarded Mayhew $2,500.
- The company appealed, challenging, among other things, the exclusion of custom evidence and Mayhew’s status as a servant versus a contractor.

## Issues

1. Whether Mayhew was a servant of the company (potentially triggering a fellow-servant bar) or an independent contractor engaged in a special undertaking.
2. Whether cutting and leaving an unguarded, unlighted, undisclosed ladder-hole on Mayhew’s work platform constituted actionable negligence as a hidden, extraordinary danger rather than an assumed risk of the work.
3. Whether the defendant could introduce evidence of industry custom to show that leaving ladder-holes unguarded satisfied ordinary care.

## Decision

- The Maine Supreme Judicial Court overruled the company’s exceptions and affirmed the judgment for Mayhew.
- The court treated Mayhew as engaged on special work under a special contract, not as a general servant and not as a co-servant with the superintendent or the worker who cut the hole.
- The court held the company liable for creating and leaving a concealed, unusual hazard (the unguarded ladder-hole) without warning.
- The court upheld exclusion of evidence that other mines commonly left ladder-holes without railings or warnings.

## Legal Principles

- A worker hired under a special contract for a distinct task may be treated as an independent contractor rather than a servant for purposes of allocating responsibility for negligent acts on the premises.
- A premises owner or employer must use ordinary care to guard against or warn of hidden dangers it creates that are not obvious and are not natural incidents of the work undertaken.
- Assumption of risk extends to ordinary dangers incident to the work, not to concealed and extraordinary hazards introduced without notice.
- Industry custom does not define ordinary care; proof that a dangerous practice is common does not excuse conduct that falls below reasonable prudence.

## Conclusion

The court affirmed liability where a mine owner, through its superintendent, created a new and concealed opening in a work platform without guard or warning, and it rejected the argument that an unsafe mining custom could set the standard of ordinary care.


Mayhew v. Sullivan Mining Co., 76 Me. 100 (Me. 1884)