Marcotte v. Maynard Shoe Co. , 76 N.H. 507 ( 1912 )

The defendants say that their motions for a nonsuit and a verdict should have been granted and assign the following reasons: (1) That there was no evidence of any prior accident due to the sticky condition of the friction, from which it could be found that the defendants knew of this source of danger and were chargeable with a duty to warn the plaintiff; (2) that the absence of light was in no sense a contributing cause of the accident; (3) that it was impossible the accident should have happened by reason of the plaintiff's inability to withdraw his hand from the friction because of its sticky condition; that of necessity he had to let go of the friction while it was passing under roll G, and therefore he could have done the same thing before his hand came in contact with rolls D and E; (4) that the plaintiff knew and appreciated the danger attending the work of guiding the friction up to rolls D and E, and assumed the risk.

It appeared in evidence that the plaintiff received his injury within a minute after he was sent to the rear of the machine to feed the friction into the rolls. He had never worked there before, and was not instructed as to the safe method of doing the work or warned of the dangers he was liable to encounter. The work called for quick action and a thorough knowledge of conditions. The place was insufficiently lighted. Light was necessary to enable one to judge accurately of the progress of the friction toward the calender rolls and the distance from the rolls at which the operative should remove his hand from the friction to avoid injury. The heat of the rolls gave some warning of the approach to danger, but was inadequate on account of the added peril due to the sticky condition of the friction. It was conceded that the friction was sticky. The extent to which this quality was present was in dispute. The plaintiff testified that when his left hand was four or five inches form rolls D and E, he undertook to withdraw it, but was unable to do so as it stuck to the friction. There was also evidence that one would experience as much difficulty in withdrawing his hand form the friction as he would if it were stuck between two sheets of sticky fly paper, and that at the time of the accident the composition of which the friction was made was so sticky that it held the plaintiff upon roll D for twenty-five minutes after roll E had been lowered and until the doctor came and removed him. It took ten thirty-sixths of a second for the friction to move toward the rolls one inch, and a little more than a second for it to move four or five inches. It is thus seen that the sticky condition of the friction would not have to be great to occasion the delay or interference necessary to make the difference between safety and danger; and that this circumstance, or the absence of adequate light, or both combined, could have been found to have contributed to cause the accident. In view of the nature of the work, the circumstances under which it was being conducted, and the plaintiff's inexperience, it cannot be said that the danger was so obvious that the plaintiff must have known and appreciated it and assumed the risk. It was rather a question of fact for the jury and was properly left to them to determine.

The contention that it was a physical impossibility for the plaintiff to have guided the friction with his left hand below and under roll G and between it and roll E, without letting go, and that the accident could not have happened as he testified, is not supported by the facts presented by the record. Roll G rested in an adjustable socket twenty inches above the floor and from five to eight inches distant from roll E. This does not disclose that it was impossible for the plaintiff to have done what he says he did.

At the time of the accident to the plaintiff, the defendants had been manufacturing friction at their plant for about seven years, using the same formula the last three years at least; and for two weeks or more just prior to the accident, the work at the rear of the calender machine had been carried on without the aid of sufficient light. If evidence of prior accidents would have aided the jury in arriving at the conclusion that the defendants were aware of the dangers which an inexperienced employee would encounter while feeding friction into the rolls at the rear of the machine, and have laid a basis for the imposition of a duty to warn and instruct, its absence is of no moment, as there was other evidence from which the same conclusion could have been drawn. The defendants knew or ought to have known of the sticky character of the friction, the absence of adequate light, the speed of the rolls, and the consequent danger an inexperienced employee was liable to encounter in performing the service. This would justify the imposition of a duty to warn and instruct.

The first request for instructions was given so far as it was applicable to certain conclusions of fact that might be drawn from the evidence. This was all the defendants were entitled to. But the extent that the evidence warranted the finding of other facts rendering the previous conclusion immaterial, additional instructions were given to meet the changed condition. The additional instructions were proper. Smith v. Railroad, 73 N.H. 325; Klineintie v. Company, 74 N.H. 276; Leazotte v. Company, 74 N.H. 480.

The second request was given in substance. That the language employed was different is unimportant. Bond v. Bean, 72 N.H. 444, 446.

The third request was properly denied. It required the court to instruct the jury that they must find that the absence of light No. 2 was not a contributing cause of the accident, if they believed the plaintiff's testimony; in other words, that there was no evidence in the case from which it could be found that the absence of light contributed to cause the accident. It was but another method of raising the same question heretofore considered upon the defendants' second assignment of error to the denial of their motion for a nonsuit. Upon this question the jury were instructed that "unless the absence of light No. 2 or any of the lights helped to cause the injury, then the question of the absence of light is immaterial, you need not consider it, and it will have no effect on your verdict; and this is so whether you find the absence of light is wholly immaterial on the testimony of the plaintiff, or any of the other witnesses in the case." This instruction was applicable to the evidence and was all the defendants were entitled to.

The charge, so far as it considered the duty of the master as to providing the plaintiff a safe place to work, had to do simply with the question whether the light furnished was reasonably suitable to enable the plaintiff to perform his work with safety and bore directly on the increased danger he was liable to encounter if it was not. No satisfactory objection to this part of the charge has been suggested, and we can conceive of none. It was clearly applicable to the evidence in the case. The second exception to the charge raises the same question previously considered under the first request for instructions.

When the plaintiff offered to prove by the witness Quirk that prior to the plaintiff's accident other workmen had been injured upon the same machine, it was conceded that the accidents about which the plaintiff was seeking to inquire had occurred on the front side of the machine, that they were not due to the sticky condition of the composition, and whether it was dark or light at the time was not suggested. The court thereupon found that the conditions under which these accidents occurred were not sufficiently similar to warrant the admission of the testimony and, in its discretion, excluded it. This ruling, as applied to evidence of prior accidents happening under the conditions enumerated, was the law of the trial. Batchelder v. Railway, 72 N.H. 329. But as to evidence of other accidents, happening under different conditions, it was of no moment, for the conditions might be similar to those under which the plaintiff received his injury. The court, until the conditions were shown, could be in no position to rule; and the plaintiff, if not permitted to show them, could not preserve his rights. This was the situation confronting counsel and court in the trial of this case; for later the defendants' counsel, in examining a witness who at the time of the accident to the plaintiff was feeding friction into the rolls at the rear of the same machine, but at the opposite end of the roll, asked him "if his hand got hurt that night in the machine," and the plaintiff excepted. In the discussion that followed as to the admissibility of the testimony, the plaintiff's counsel said they had no objection to the question if the defendants' counsel wished to go into the subject, and to this statement the defendants excepted.

As the evidence disclosed that the conditions under which the employee was working were similar, if not the same, as those attending the plaintiff at the time he received his injury, the question was no doubt competent. Saucier v. Spinning Mills, 72 N.H. 292. If the defendants were to be permitted to go into the subject of other accidents, it was not prejudicial for the plaintiff's counsel to suggest to the court that they should expect the same treatment, and this is what their statement amounts to. When Maynard, the sole owner of the corporation, was being cross-examined by the plaintiff, he was asked if others besides Marcotte had been injured in the machine, and the defendants excepted. The question was ruled out. Whether it was excluded in the discretion of the court, or as matter of law, does not appear. It called for the witness' knowledge of the occurrence of other accidents. If he did not know of their occurrence, the question would not help the plaintiff or injure the defendants. If he did know of them, the plaintiff was entitled to have the court or jury determine whether the conditions under which they happened were the same or similar to those under which the plaintiff received his injury; and if they were, to have them considered by the jury on the question of the defendants' liability. Colburn v. Groton, 66 N.H. 151. The plaintiff was cross-examining the real defendant in the suit. He could not know whether the witness knew of other accidents occurring under similar conditions without inquiry, and this he was not permitted to make. The question was withdrawn, and the jury instructed to disregard it. If any one was prejudiced by what transpired, it would not seem to be the defendants.

Exceptions overruled.

All concurred.