127 A. 705 | N.H. | 1924
The defendant having accepted the provisions of Laws 1911, c. 163, this action is at common law as modified by Laws 1915, c. 148.
The negligence relied upon was the failure of the defendant to furnish the plaintiff with a safe place to work, and to instruct her as to the danger from the unguarded shaft and pulleys. The plaintiff admitted she had been instructed as to the operation of the steel rolls, but denied that her attention had ever been called to danger from the moving shaft and pulley in the frame below. The second hand under whose direction the plaintiff was working testified that the smooth steel rolls in the machines sometimes got "bunged up" *386 with cotton so that the machines had to be stopped in order to remove it; also that he had seen cotton going around a shaft in a similar drawing frame, though never in the room where the accident happened; that he had instructed every girl that went on to the work to "stop their frames to clean, and not to have them in motion when they cleaned up"; but that he had never, before the accident, called their attention to any danger from the lower part of the machine. He admitted that a guard could have been installed to protect the operative from the moving shafts and pulleys without interfering with the operation of the machine.
The defendant was chargeable with knowledge of the condition of the alleyway which the plaintiff was directed to straighten out, its narrowness, the clutter, the overturned can and the possible proximity of the cotton to the unguarded shafting and pulley. It cannot be said that reasonable men might not find upon the foregoing facts that the defendant should have maintained a guard to protect the operative in her work; or should have shut off the power before sending the plaintiff to clean up the cluttered aisle in proximity to the unguarded shafting and pulley; or, failing both, should have instructed the plaintiff as to the danger.
The defendant contends that the accident could not have happened in the manner claimed, for the reason that the roving, as it came from the machine, had insufficient tensile strength to have drawn the plaintiff's finger upon the shaft and to have produced the injury. This contention presents the question whether there was evidence to support the plaintiff's theory of the accident in so far as such theory is essential to recovery. It is conceded by the plaintiff that the roving, when deposited in the can, is a straight, untwisted rope of cotton which is easily broken. It appeared in evidence that, when passing through the machine, the cotton sometimes adheres to the smooth steel rolls, in which event the rolls have to be stopped while the cotton is picked off; that if the cotton roving gets twisted it becomes harder. It is a matter of common knowledge that fibrous material like cotton when twisted, as in spinning, becomes harder and stronger. The evidence is silent as to the quantity of cotton the roving contained for a given length, and as to the amount of twisting required to give it sufficient strength to have drawn the plaintiff's hand into the machinery. How far the roving may have been snarled or twisted by its fall from the can, by its contact with the revolving pulley, or by the act of gathering it up, is not disclosed. The verdict, however, is not necessarily predicated upon *387 the sufficiency of the strength of the roving to have itself cut and torn the flesh from the finger. It seems to be conceded that the injury was produced in some manner by contact either directly or indirectly with the moving machinery, but it does not certainly appear whether such contact was with the shaft or the pulley. The only evidence of the accident comes from the plaintiff. She testifies that she did not put her hand on the shafting; that as she bent over to put the cotton into the can her hand was pulled "right into the lower part," "into the frame," "into the pulley"; that when she pulled her hand out all of the flesh was torn off the little finger; that she did not know what pulled her hand into the machinery, nor how it was done, it was done so quickly. The jury had a view of the premises. It is assumed that the jurors saw the machine in operation, and that there were pointed out to them the position where it was claimed the plaintiff stood, and the place where the can and cotton lay with reference to the shaft and pulley. The roving-can and samples of the roving were produced at the trial. Under both direct and cross examination the plaintiff was required to leave the witness stand and to indicate to the jury the position of the can and of the fallen cotton with reference to the machine, and the manner in which she held the can and attempted to gather up the cotton. The cotton upon the floor. The part of the machinery which was nearest the floor was the lower portion of the pulley about which passed the belt which propelled the rolls above. The portion of the pulley nearest the plaintiff was revolving downward and away from the plaintiff as she reached down for the cotton. It cannot be said as a matter of law that the position of the cotton with reference to the pulley and the strength of the roving were not such that the plaintiff's little finger might have been drawn by the cotton into the nip of the belt and pulley. Manifestly it could be found that these were capable of producing the injury complained of.
Furthermore, the defendant makes the somewhat inconsistent claim that, if the accident happened in the manner claimed, the danger was an obvious one and that, therefore, the accident was due to an assumed risk of the plaintiff's employment. The plaintiff had the burden of proof that her injury was due to a risk she did not assume. Bjork v. Company,
The plaintiff had been instructed in the operation of the drawing frames and for nine weeks had filled the position of a spare hand on these machines and on railway head machines. She knew the shafting and pulleys were in motion and unguarded, and that if she got her hands in the pulley or on the shafting when moving she might get hurt. She knew that if the cotton got around the shafting it might wind and in that case that it would be dangerous. On the other hand she had no duties to perform with reference to the shafting and pulleys and no control over them; she had never seen any cotton wound on the shafting and her attention had not been called to the danger of roving becoming caught on this portion of the moving machinery. In substance the plaintiff testified that she did not touch the shaft; that when she bent down to pick up the can she did not see any cotton on the shaft, or observe the proximity of the roving to the shaft and pulley, because the place was so cluttered up with cans it was impossible for anyone to pass through; that her thoughts were on picking up the roving and putting it in the can so she could attend to her other work; that it all happened very quickly; that as she went to pick up the cotton the first thing she knew her hand was drawn into the shaft or pulley. Her testimony tends to prove that the only danger from the pulley and shafting of which she knew or which she appreciated was the danger of getting her hands in contact with them, and that it had never occurred to her that her hand might be drawn against them by the roving. Nothing had taken place in her experience to suggest this possibility. It is manifest that dangers which would be apparent to one familiar with the mechanical principles which govern the process of carding and spinning cotton fibre are not necessarily patent to one of the plaintiff's limited knowledge and experience. In view of such limited knowledge and experience and of her lack of opportunity for observation, it could be found that she did not appreciate the danger of having her hand drawn into the machinery by cotton roving overturned in proximity to moving shaftings and pulleys, and was not at fault for her want of such appreciation.
When asked if she was careful when she picked up the cotton roving she replied that she "didn't think anything about it" — that she picked it up as she had before "not thinking of any danger" — that *389
she "didn't think anything about" getting her hands on the shaft or pulley or that the cotton would wind on the shaft. The defendant contends that this testimony conclusively establishes the plaintiff's contributory negligence. It is to be borne in mind that the plaintiff testified positively that she did not put her hand upon the shaft. It could be found that the admissions relied upon, therefore, amounted to no more than a statement that the possibility of the roving drawing her hand upon the shaft or pulley had never occurred to her, which, as we have seen, was explained by her limited knowledge and experience. This is, therefore, not a case of unexplained absence of thought in a situation of known danger, as was the case in O'Hare v. Company,
Exceptions overruled.
All concurred.
