51 A. 257 | N.H. | 1901
It is not contended that there was any defect in the machine upon which the plaintiff was injured, or that the obligation of the master to provide reasonably safe machinery was not fully performed. Neither is it claimed that the holes in the cloth, charged as the cause of the plaintiff's injury, were due to any carelessness or unskillfulness of the master in the process of manufacture adopted. So far as appears, such defects are liable to arise in the prevailing methods of making cloth. At least, there is no attempt to prove the contrary. The only ground of negligence alleged against the defendants is that the plaintiff was not informed of the possible or probable occasional existence of holes in the cloth.
"There are limits to the obligation of an employer to point out the dangers of proper machinery. The obligation is imposed mainly for the sake of the young who have not the experience or power to look out for themselves which are to be expected in adults, or, in the case of adults, where there are concealed defects." Robinska v. Lyman Mills,
From the plaintiff's testimony it appears that the taking out of the double edges upon the expander — the operation in which the plaintiff was engaged when injured — was necessary and proper. This being so, the risk of injury in the operation was incident the plaintiff's employment. That there was danger that a person's hand placed upon the expander for any purpose might be carried *107 along upon the cloth, or caught in a double edge, hole, or tear in the band of cloth at the seams or elsewhere, and drawn in between the expander and hot roll, producing serious injury, must be obvious to any person of ordinary understanding. But the case does not stand upon this ground, for the plaintiff admits that he fully understood the danger. He knew that if his finger was caught in the cloth he might be injured precisely as he was injured. He testified he knew that if his finger was caught in a double edge such as he was trying to straighten, he would be injured. With such knowledge, due care required him to endeavor to learn whether any imperfections were likely to occur in the cloth by which his hand would be caught, and the method of avoiding such danger. He testified that he did not know there were holes in the cloth except at the seams where the pieces coming from the looms were sewed into a continuous band for passage through his machine. It is not necessary to consider the question whether it can reasonably be found, in the face of all the other evidence the case, that this statement is true; for a determining question is whether upon the evidence, considering only that furnished by the plaintiff, it can with reason be said that the plaintiff would not with ordinary care have learned prior to the accident of the possible existence of such imperfections in the cloth coming to his machine.
There is no evidence that he made any effort in this direction. If the obligation to exercise care could have been satisfied by inquiry of workmen of experience (Burnham v. Railroad,
As the plaintiff is chargeable with knowledge which he could have acquired with ordinary care, and as such care would have disclosed to him the danger of which he complains he was not warned, the failure to warn him of a danger of which he knew or ought to have known is not a ground of action against his employer. Crowely v. Pacific Mills,
The plaintiff claims that on the occasion when he was injured he was expressly directed to go around behind and take out the *109
double edges, and that when so directed it had been his habit go behind and take out the edges on the expander. This testimony, if found true, would tend to answer the claim that the plaintiff was guilty of negligence in attempting this work upon the expander. If the plaintiff had never before done the work at this point in the machine or seen it done, and had suddenly been directed to do it in this manner, the immediate command of his superior would be evidence upon the question whether he ought to have appreciated and understood the danger, and might be considered an excuse for his failure to do so. But the plaintiff puts his case on the ground that it was necessary and proper to do the work at this place. He had done it himself, had been seen by his superiors doing it, and had seen the foreman in charge of his work do it. From this it follows that the plaintiff was not suddenly directed to do a work with the dangers of which he had no opportunity to familiarize himself, but was merely called upon to perform a labor incident to his service and within the scope of his employment. He was merely directed to perform an act undoubtedly dangerous, but with the dangers of which, upon his own representation of the duties he had undertaken to perform, he could have informed himself by the exercise of ordinary care. Under these circumstances, the fact that he was injured while acting under the direct orders of his superior does not give him right of action. Davis v. Railroad,
A careful examination of the minutes of the testimony which have been furnished fails to disclose any evidence upon which the verdict found for the plaintiff can be sustained. The motions for nonsuit and verdict for the defendants should have been granted.
Exceptions sustained: verdict set aside: judgment for the defendants.
All concurred. *110