Bennett v. Warren , 70 N.H. 564 ( 1900 )

One of the questions raised is whether the plaintiff was working within the scope of his employment when he was injured. He was at the rear end of a planer, taking away the boards as they came through it. The blower-pipe being defective, the shavings which dropped from the planer became packed in beneath the machine, and obstructed its operations. He understood that it was his duty to clear away the shavings, and in doing so was injured. The jury had a view of this machine when still and when in operation, and of the place of the accident. Charles C. Bennett, who had charge of the machine and who was experienced in this work, testified that the man who took away the boards was required to keep the shavings away. This evidence warranted the submission of this question to the jury, and from it and what the view disclosed, they could properly find that the clearing away of the shavings, the work in which the plaintiff was engaged when injured, was a part of his duty.

Another question presented is whether any negligence was shown on the part of the defendants. The negligence complained of was the employment of defective machinery, and the failure to inform the servant, whom the master knew to be inexperienced, as to the danger of his work. There was evidence tending to show that the blower-pipe that carried the shavings from the machine on which the servant was set to work was defective, and that this was known to the master. The natural result of that defect was that the shavings, not being properly carried away, would after a time become packed in beneath the machine, and obstruct its operation and necessitate their removal. To remove them while the machine was in motion was dangerous. The plaintiff was wholly inexperienced, having never worked in a mill before, had no knowledge of machinery, and no experience in its operation. He so informed the superintendent when he applied for work in the stable or as a teamster. The knives of the planer were covered by the machine and by the shavings as they were packed into it, and were not readily seen. Here was evidence from which it might be fairly found that the master was bound to inform the servant of and warn him against this danger of his work, and that the failure to perform this duty was the cause of the injury.

It is also urged that the danger from the revolving knives of the planer was apparent, and was assumed by the plaintiff as one of the ordinary risks of his employment, and also that he was guilty of contributory negligence in putting his hands into the machine to remove the shavings with which it was clogged. The cylinders carrying the knives which planed the boards were covered on top so that the knives could not be seen by ordinary inspection. At the time of the accident, the defect in the blower allowed the shavings to clog in the machine. When thus clogged they were so solidly packed that they had to be dug out with the hand or a stick. The plaintiff knew there were knives in the machine which planed the boards; but he did not know that the knives were at the rear of the machine. They were completely concealed from his observation by the machine which covered them, and by the shavings as they were packed into the machine. His testimony shows he looked under the machine, and all that he could see was the shavings. In view of the facts that he had no warning of any danger, that he was wholly inexperienced (having worked but a few hours at this employment), that the knives were wholly concealed by the top of the machine and the shavings, and that no stick or other implement was given him with which to clear them out, it cannot be said that the minds of reasonable men could not differ on the question of whether he ought to have known of the danger, and therefore assumed it, or on the question of whether he was guilty of negligence in attempting to remove the shavings from the machine with his hand.

The defective condition of the machine, and the concealment of the danger resulting from this cause and from the construction of the machine, distinguishes this case from Collins v. Car Co., 68 N.H. 196, Burnham v. Railroad, 68 N.H. 567, and Robinska v. Lyman Mills, 174 Mass. 432. In these cases there were no defective appliances, and the danger was open to ordinary observation.

The evidence of the defective condition of the blower-pipe of the planer and the defendant's knowledge of this defect was properly admitted. The natural result of the defect was the clogging of the planer with shavings, necessitating their being cleaned out. This evidence tended to show that there was a dangerous situation of which the defendants had notice and in regard to which they should have instructed the plaintiff. There was no error in the admission of the evidence that the plaintiff was obliged to hold up the boards passing through the planer so as to let them run over the pile of boards behind it. This and the other circumstances under which he was working at the time of the accident showed how completely he was engaged, and were competent on the question of whether he was exercising due care, or was negligent in not noticing the condition of the shavings under the planer and the manner it was being clogged sooner than he did.

There was no error in the refusal to give the instructions requested, or in those given. Considering the inexperience of the plaintiff, the failure of his employers to instruct him, and the manner in which the knives of the planer were concealed by the machine and the shavings with which the defective blower had caused it to be packed, it cannot be said, as a matter of law, that Bennett's putting his hand into the machine to remove the shavings, although it was running, ought to preclude him from recovering. It was properly left for the jury to determine whether under these circumstances his act was one of ordinary prudence. The answer of the court to the jury's inquiry, as to whether the defendant was responsible for any orders that the brother of the plaintiff gave to him, was sufficiently favorable to the defendant. It answered the question "No," and told the jury that the defendant's liability depended upon whether the plaintiff, when injured, was doing something which was a part of his duty, and not upon whether his brother directed him to do it.

Exceptions overruled.

PARSONS and PEASLEE, JJ., did not sit: the others concurred.