Vigneault v. Winchester Tannery Co. , 76 N.H. 196 ( 1911 )

The plaintiff bases his right of recovery upon the defendants' failure to instruct him as to the safe and proper method of oiling the fan and to warn him of the dangers attendant upon the performance of his duty in case he undertook to oil it when in motion from the easterly side of the shaft. The defendants, in support of their exceptions to the denial of their motions for a nonsuit and a verdict, contend that there was no evidence from which it could reasonably be found that they were negligent and that the plaintiff was in the exercise of due care; also that the dangers attendant upon the oiling of the fan were so apparent that he must be held to have assumed the risk as a matter of law.

Upon the question of the defendants' negligence and the plaintiff's care, the evidence was that the safe and customary way of oiling the fan, when in motion, was for the oiler to stand at the jog in the rail west of the shaft and oil the westerly holes in the box with the can provided for the purpose. The holes in the box on the east side of the shaft could not be seen or oiled by one standing in that position. There was an oil reservoir inside each end of the box, into which the oil flowed when the holes were oiled on either side, so that it was only necessary to oil the holes in the box on one side of the shaft. The plaintiff was not informed and did not know of the safe and customary method of oiling the box, and did not know that both sets of holes did not require oiling.

When one stood easterly of the shaft, the oil-holes on that side could be readily seen. There was an unobstructed approach to the shaft from that side; and the fan, which revolved very rapidly, appeared to be ten or twelve inches north of and away from the irons supporting and staying the box, and a sufficient distance north of the northeasterly hole in the box to permit of its being safely oiled. This was the situation as it presented itself to the plaintiff when he went to oil the fan. The appearances, however, were deceptive. The fact was that there were steel blades on the fan which were unobservable when the fan was in motion, and which projected such a distance southerly from the frame of the fan that their extreme ends came within an inch and three quarters or thereabouts of the iron braces at the box, and rendered the work of oiling from the east side so hazardous that it was not customary to do so, except when the fan was at rest.

The instructions to the plaintiff were general — to oil the shops. He was not told to oil the fan, or where he should go to do the work. There was no rail obstructing the approach to the oil-holes on the east, as there was on the west side. The plaintiff, observing these surroundings and relying upon them, approached the shaft from the east side; and while in the act of raising the can to oil the northeasterly hole in the box, he was struck by the invisible knives on the fan and injured. From this evidence it could be found that the defendants were negligent in failing to properly instruct the plaintiff, that their failure was the proximate cause of his injury, and that he was without fault.

Moreover, it cannot be said that the danger was so open and apparent that the plaintiff must be held as a matter of law to have assumed the risk. In addition to the evidence above narrated, it appears that the plaintiff had never been in that portion of the mill where the fan was located until he went there to oil it at the time he received his injury, and that he had not seen the fan at rest. It is true he had worked about box factories to some extent and fed boards into a planning machine, but this is only evidence bearing upon the question whether a man of his experience might not know and appreciate the danger to which he was subjected if he attempted to oil the fan from the east side. It is not conclusive, however.

If the question asked the defendants' superintendant [superintendent] was improper, the defendants took nothing by their exception, for the question was withdrawn, the jury were instructed to disregard it, and it has been found that it did not render the trial unfair. Lee v. Dow, 73 N.H. 101.

The argument of the plaintiff's counsel would seem to be based upon the evidence and unobjectionable. The defendants were a corporation. The general supervision of their business was entrusted to a superintendent, and there were different departments in charge of foremen. Smith was the superintendent, and Handy was the foreman of the mechanical department, under whom the plaintiff worked. Both of these men were called as witnesses for the defendants, as were other employees of theirs. As bearing upon their credibility and the weight to be given their testimony, it was competent for counsel to remind the jury that these men were employed by the corporation as heads of one or of all its different departments and were responsible for their proper management. Genest v. Company, 75 N.H. 509. This was all the argument came to.

Exceptions overruled.

All concurred.