104 A. 125 | N.H. | 1918
The defendants' exceptions to the action of the court, in submitting to the jury the issue as to whether the sawing-machine was defective, and to the charge of the court relating thereto, raise the questions for determination whether there was any evidence upon which the jury could find that the machine was defective, and, if so, did that defect cause or contribute to cause the accident.
It is claimed by the plaintiff that the saw-arbor of the sawing-machine, at the time of the accident was so loose in its bearings, that the saw did not run true and even, but wabbled to such an extent as to render it defective, and that such defect was instrumental in causing his injury. The evidence of the officers of the defendants showed that an eighth of an inch play of the saw-arbor in its bearings was too much, that with such an amount of play the saw would not go so steadily and would be more likely to bind. While they did not admit that the saw wabbled, the character of their testimony was such that it had some tendency to prove that it did. At the view of the machine taken by the jury, it appeared that the saw-arbor was so loose that it could be lifted up in its bearings until it rattled up and down. The machine was in the same condition at the time of the accident as it was when the view was taken. The plaintiff testified that he was sawing a block eight inches in length, holding it in a vertical position, and that the accident occurred as follows:
"Q. Well, tell the jury what happened? A. Why, I just pushed *65 the block up to the saw when there was a jarring sound and the saw stopped and then started again, and all I could see was blood.
Q. State whether or not the saw did anything to that block that you were holding except to cut it? A. Why, I have an idea that it must have twitched it into the saw; must have twitched it around into the saw."
It is doubtful if the jury could find affirmatively on the issues here presented upon the oral evidence in the case, but that evidence supplemented by the evidence furnished at the view might warrant such a finding, and we cannot say it would not.
The defendants contend that the jury would not have sufficient knowledge without expert testimony to determine that the sawing-machine was defective, or that a defect such as claimed would contribute to cause the accident. We do not think this contention is tenable. Sawing-machines are not intricate or complicated in their construction or operation, and they are in common use in nearly every community. The jury composed of intelligent, experienced men taken from the ordinary walks of life, and engaged in various pursuits would have a general knowledge of the use and operation of sawing-machines. The view may have furnished a vital para of the evidence, and apparently did. This court does not know how strong and convincing that evidence was, but the jury were fully informed of its character, and, therefore, this is peculiarly a case where their judgment and experience should be invoked to determine the issues involved. Lyman v. Railroad,
An exception of the defendants, bearing upon the rights of the plaintiff, if he were found to be a volunteer at the work he was engaged in at the time of the accident, has not been referred to in the defendants' brief or oral argument, and is not understood to be relied upon.
Exceptions overruled.
All concurred.