Bjork v. U. S. Bobbin & Shuttle Co.

• Decision Date: 06 April 1920
• Citation: 111 A. 284
• Parties: BJORK v. U. S. BOBBIN & SHUTTLE CO.
• Court: New Hampshire Supreme Court

111 A. 284

BJORK

v. U. S. BOBBIN & SHUTTLE CO.

Supreme Court of New Hampshire. Hillsborough.

April 6, 1920.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Action by Arved L. Bjork, by his next friend, against the United States Bobbin & Shuttle Company. Verdict for plaintiff, and case transferred to the Supreme Court on defendant's exceptions. Exceptions sustained.

Case for injuries received while in the defendant's employ. Trial by jury, and verdict for the plaintiff. The defendant had duly accepted the provisions of Employers' Liability and Workmen's Compensation Act. Laws 1911, c. 163.

The plaintiff, who was 16 years of age at the time of the injury was employed to take away from a saw fed by another employe. He was so engaged about 5 hours in the forenoon of the day of his employment. In the afternoon he was given other work, and the next morning at his request was again put on the saw, and Was injured soon after beginning work. He was instructed to be careful not to get his hands upon the saw and appreciated that danger. His evidence tended to prove that a piece of wood which he had grasped to take away from the saw suddenly sprang or jumped back, dragging his hand upon the saw and causing the injury; that this kicking or jumping back of the material being sawed was something likely to occur; that he did not know this danger, and was not warned of it by the defendant or instructed how to avoid injury thereby. The defendant requested the court to instruct the jury that, if they found the injury was not due to any jumping or shooting back of the piece of wood, as the plaintiff claimed, their verdict should be for the defendant, and excepted to the failure to give this instruction, and to the instruction that there was no evidence the plaintiff assumed the risk of injury from the jumping back of the stick that was being sawed, and that the jury could not find the plaintiff assumed the risk of injury, if they believed it was so caused. There were also exceptions to the argument of counsel. See Ill Atl. 533.

Taggart, Tuttle, Wyman & Starr and L. E. Wyman, all of Manchester, for plaintiff.

Streeter, Demond, Woodworth & Sulloway and Jonathan Piper, all of Concord, for defendant.

PARSONS, C. J. The enlarged liability to employes imposed upon the employer in certain employments under chapter 163, Laws 1911, by section 2 of the act does not apply to an employer, who has accepted the provisions of the act. Id. § 3. In such case the existing right of action at common law is preserved to employes who elect such action, instead of the compensation established by the act. Id. § 4. Hence the present action is at common law and the statute is inapplicable. The jury, therefore, were properly instructed that the plaintiff to recover must establish that the injury arose from a risk which he did not assume, and that the defendants' negligence caused the injury. See Laws 1915, c. 148.

His claim was that he was injured by the sudden jumping back of the piece of wood which was being sawed; that such an event was so common that it was negligence in the defendants not to warn him of the danger; that he had no knowledge of it, and was not warned or instructed with reference to it. The defendants concede that there was evidence for the jury in support of the plaintiff's contentions, but they insist upon their exception to the instruction given the jury, after the general ones above referred to, that there was no evidence that the plaintiff assumed the risk of injury from the jumping back of the stick which was being sawed, and that they could not find he assumed the risk if his injury was so caused.

The burden of proof as to the nonas-sumption of risk was on the plaintiff. Richardson v. Co., 77 N. H. 187, 189, 90 Atl. 174; Hicks v. Co., 74 N. H. 154, 157, 65 Atl. 1075; Burnham v. Railroad, 68 N. H. 567, 568, 44 Atl. 750. Consequently, under the authorities and the law of the case as laid down earlier in the charge, the absence of evidence tending to show the plaintiff assumed the risk would not justify the instruction that the jury could not find the plaintiff assumed the risk. As the burden of proving nonas-sumption rested with the plaintiff, the only rinding possible, if there were no facts in proof from which inferences could be drawn, was necessarily against the plaintiff. To recover, as stated in Burnham v. Railroad, 68 N. H. 567, 568, 44 Atl. 750:

"The plaintiff was bound to prove * * * that the risk * * * by which he was injured was not assumed by him."

In that case complaint was made of the presence of unblocked frogs in the railroad yard in which Duquette, the plaintiff's decedent, worked as the cause of his injury. Duquette's testimony not being available, and the inferences deducible from the facts in proof tending to establish knowledge rather than ignorance on his part of the unblocked condition of the yard, it was held there was nothing for the jury. In the present case it is conceded the facts proved authorize the inference that Bjork did not know the danger which he alleges as the cause of his injury; but, because the jury might find the issue favorably to the plaintiff, it does not follow that they are required to do so as matter of law, which was the necessary effect of the instruction that this issue could not be found for the defendants.

Though ...