Osman v. W. H. McElwain Co.

The instructions of the court, to which exception was taken by the plaintiff, required the jury to return a verdict for the defendants unless they found that the accident was caused by a defective reel. If the reeling machine was not defective, and the defendants were not in fault because it came down, and struck the plaintiff, still this would not relieve them from liability, if they were negligent in not providing a reasonably safe place for the plaintiff to work, and their negligence caused the accident, or contributed to cause it. Ela v. Company, 71 N.H. 1; Sirois v. Henry, 73 N.H. 148; Hamel v. Company, 73 N.H. 386; Vaisbord v. Company, 74 N.H. 470. The plaintiff urges that there was evidence from which the jury could have found that the defendants were negligent in failing to furnish for him a reasonably safe work-place, and that such negligence caused or contributed to cause the accident. There was evidence that the plaintiff was required to toggle hides on a wet, slippery floor within two feet, and on a level with the top, of an uncovered vat filled with poisonous liquid; that the plaintiff just before the accident had taken all the hides from this vat, and that he undertook to cover it with a cover provided for that purpose, before he began to toggle hides near the edge of the vat, but was stopped from doing so by his boss. This evidence would have justified a finding by the jury that the place where the plaintiff was called upon to work was not reasonably safe. The defendants say that there was no evidence that slippery floors and uncovered vats were not necessary in carrying on a tannery, or that they were not essential at the time of the accident, and therefore that the defendants' negligence upon this phase of the case could not be found.

Whatever may be said as to the necessity of having slippery floors or uncovered vats in a tannery, the defendants were bound to provide a reasonably safe place for the plaintiff to work, and it cannot be said as a matter of law, that a wet, slippery floor near the edge of an open vat filled with poisonous liquid, is such a place. Moreover there was evidence that the vat into which the plaintiff fell was not in use when the accident occurred, and there is no apparent reason why it should not have been covered, and on the plaintiff's evidence it would have been, and the accident undoubtedly prevented, but for the interference of the defendants' overseer. Besides hearing the testimony as to the accident and the condition of the premises, the jury saw the place of accident, and the view might have furnished additional evidence of the defendants' negligence. It is contended by the defendants that it did not appear that the condition of the premises contributed to cause the accident, and consequently, if it could be found that the defendants were negligent in respect to their premises, that would not render them liable in this action. The plaintiff testified that the reel came down, and hit him on the back, that he turned around to stop the machine, and slipped and fell into the vat. If the plaintiff had not been standing on a wet, slippery floor when the reel struck him, it is probable that he would not have slipped when he turned to stop the machine; even if he had slipped and fell, he would not have gone into the vat, if it had been covered. It could be found on the evidence that the wet, slippery floor and uncovered vat contributed to cause the accident. As it could be found that the defendants were negligent in not providing a reasonably safe work-place for the plaintiff, and that this negligence contributed to cause the accident, the right of the plaintiff to have the question of the defendants' due care respecting their premises submitted to the jury cannot be doubted.

Exception sustained.

All concurred.