42 A.2d 332 | N.H. | 1945
The defendant claims that it could not reasonably be found that the plaintiff did not assume the risk of the hazard that resulted in his injury. The plaintiff Blais of course knew that if his hand came in contact with the swiftly revolving knives, it would be cut. But there is a further question of whether he knew and appreciated that the operation he engaged in would result in such contact. "Even if it were to be assumed, however, that the plaintiff was chargeable with knowledge that the acid was dangerous and that contact with it would be injurious, it could not be held, as a matter of law, that he `appreciated the risk of the particular danger'. . . from which his injury resulted." Lamarche v. Lamarche,
Prior to the accident, August 14, 1942, the plaintiff had been working on a converted wood-turning lathe since the former operator left six days before. The use made of the lathe was to shape hand guards for army rifle barrels. Two were processed at a time. In front of and at right angles to the line of vision of the operator was a spindle or mandrel to which the two pieces of wood about a foot long were dogged. By means of a lever moved with the right hand, the spindle then was pushed against knives revolving at high speed so that the rifle guards acquired the desired shape, after which they were withdrawn and the dogs released by a different lever. On being released, the wooden pieces ordinarily fell to the table from the spindle, when a new pair were dogged to the spindle and treated in their turn. The knives were five and one-half inches in the rear of the spindle. So that they would fit to the round spindle, the pieces were grooved in an earlier process. Because of the fact that the grooving was sometimes not properly done, the pieces occasionally stuck to the spindle. More than once Mr. Blais complained about this to his superiors. He was told to have the groove operator reset his machine and this the plaintiff did, but he was given no instructions as to the removal of the pieces and testified that he did not know that it was more dangerous when a piece stuck. He, himself, devised a method of loosening the pieces, which he followed to the time of the accident. This was to remove them with the fingers of his left hand, the palm being held upward and underneath the spindle and any pull of the hand being toward the operator. This way was used with the lathe in operation and was observed *372 served by the boss in charge of the machines. It could reasonably be found that the defendant approved of dislodging the pieces that stuck with the machinery in motion. When the accident happened, for the first time the plaintiff was unable to loosen a piece by the means used until then. The farther one stuck to the spindle too firmly. He put his left hand over the spindle and with a rotary motion of the hand tried to shake the piece loose. It came off suddenly and his hand went in the direction of and against the revolving knives.
Previous to working on the converted hand-fed machine, Mr. Blais had run five automatic lathes. These were automatically fed from magazines that were placed between the knives and the operator. If the feeding was interrupted, the machine was stopped and the work continued on the other four machines. The work on the converted lathe was in performance of an army order and stopping the machine would mean that the operator would be turning out no work.
The plaintiff Blais did not intend that his hand be pushed toward the knives. Under skillful cross-examination he was led to say that the motion of his hand was toward the knives and that he was pushing his hand toward them. It could reasonably be found that he was describing the inadvertent result of the rotary motion of his hand in attempting to shake loose the wood, and not a purpose of his to push substantially in the direction of the knives. More than once he explained on the witness stand that he was merely shaking the obstinate piece with perhaps a rotary motion of the hand. "Q. You were pushing it towards the knives? A. I didn't push it. I just shook it." At the time of this operation, Mr. Blais had his left thumb around the spindle so that his hand would be held from getting into danger, but for some reason he miscalculated. The jury found that he was in the exercise of due care. Suddenly the wood gave way and the harm was done. The wood had stuck more firmly than the employee knew or appreciated. The power of his muscles suddenly released carried his hand into the knives. He had not intended such a movement.
What the plaintiff did not understand or appreciate was the tenacity with which the grooved wood might cling to the spindle, and the consequent danger of removing it with the hand over the spindle. Always before during his five or six days on the converted machine he had been able to loosen the wooden pieces with the method of the palm up. This he knew to be safe. For the first time he encountered *373
work that clung to the spindle with a grip that he could not loosen in the usual way. He did not know or appreciate the force that would be needed to dislodge it, and believed that it was so little more than what was ordinarily required that he could loosen the piece with his hand over the spindle. He had not been told, and had no reason to know from experience, that the wood might cling to the spindle so firmly that the release of it would send his hand into the knives away from himself. "`Unless a servant's actual or constructive knowledge of those factors which enter into his injury is substantially complete,' he cannot be held to have assumed the risk. Kruger v. Company,
Two views were given the jury of the machine upon which the plaintiff was working when the accident took place. There was no guard on it at the first view, but there was at the second. This guard was devised and installed after the accident. The Court first ruled that the guard should be exhibited to the jury in the courtroom without information as to its origin. This was found to be impracticable. At the time of the second view, which was duly excepted to by the defendant, the jury was instructed by the Court that the guard on the machine was not evidence that the defendant was careless in not installing one before the accident, but was in support of the plaintiff's claim that "a similar guard could and should have been used before the accident." The plaintiff's expert on direct examination testified that there was a guard on the machine when he first saw it, but not the second time at the view by the jury. A motion for mistrial by the defendant was denied subject to exception. The matter of subsequent repairs of a machine or place ordinarily is not admissible in evidence. "It is unjust to hold that a correction of defects so disclosed, and made to prevent other similar injuries, is evidence that the accident itself was due to negligence. The doctrine, so far as it tends to restrain or delay the correction, is unwise — injurious to the public safety. Ordinary care is the standard of duty. Between reasonable and possible precaution the distance may be wide. A defendant who has exercised ordinary care to avoid injuring others, should be at *374
liberty to exert extraordinary diligence without liability to have his action used as evidence of previous negligence." Aldrich v. Railroad,
The employee whose place was taken by the plaintiff was asked whether he was given any instructions concerning the removal of pieces that stuck. An answer in the negative was permitted subject to exception. Evidence of a similar but unconnected negligent occurrence is not admissible to prove carelessness. Wentworth v. Smith,
New trial. *375
BRANCH, J., did not sit: BURQUE, J., was absent: PAGE, J., concurred: MARBLE, C. J., was of the opinion that there is no evidence from which it could fairly be found that the plaintiff did not assume the risk.
