Boody v. K. & C. Mfg. Co.

• Decision Date: 07 April 1914
• Citation: 77 N.H. 208,90 A. 859
• Court: New Hampshire Supreme Court
• Parties: BOODY v. K. & C. MFG. CO.

90 A. 859

77 N.H. 208

BOODY

v. K. & C. MFG. CO.

Supreme Court of New Hampshire. Merrimack.

April 7, 1914.

Exceptions from Superior Court, Merrimack County; Plummer, Judge.

Action by Mary Boody, as administratrix of Erastus S. Boody, deceased, against the K. & C. Manufacturing Company, in which there was a verdict for plaintiff. Transferred on defendant's exceptions to the denial of a motion for the direction of a verdict and to the instructions. Exceptions overruled.

Boody was employed by the defendants to work in and about a mill in which power-driven machinery was used and five or more persons were employed in manual and mechanical labor. The water to drive the machinery was taken from a river and flowed from a dam through an open flume equipped with two racks, one located at the intake and the other near the wheels, to catch the rubbish which came down the stream in times of high water. It was Boody's work to clean the racks whenever they needed cleaning, and when so doing he was expected to stand on a narrow, unrailed walk and pull the rubbish out of the racks with a rake. The water was high on the morning of the accident, and there was rubbish in both racks. When last seen alive, Boody was standing on the walk very near the river and with his back to the stream, with a rake in his hand, attempting to pull some brush out of the rack at the intake. A few minutes later he was missing and could not be found. Twelve days later his body was recovered from the river below the mill. After the drowning a broken rake was found in the flume and a freshly broken rake handle was found in the river.

Martin & Howe, of Concord, for plaintiff. Jones, Warren, Wilson & Manning, of Manchester, for defendant.

YOUNG, J. By the enactment of chapter 163, Laws of 1911, the Legislature intended to change the common law so that one who is injured by accident while engaged in work in which the risks are great and difficult to avoid may be compensated, in part at least, for the loss thereby sustained, if the accident is one arising out of and in the course of the employment, regardless of the cause of his injury. Section 2. It seems to have been understood, however, that this change could not be made without the assent of all those affected by it. It was necessary, therefore, from that viewpoint, to secure the assent of those affected by the act as well as to provide for compensation to the injured. It is the office of section 1 to define those who come within the operation of the act and of sections 2, 3, and 4 to induce them to accept its provisions. The means devised to induce such acceptance by employers were: (1) To provide that if an employé is injured by accident arising out of and in the course of the employment, caused in whole or in part by the negligence of his employers or of their servants or agents, the employers shall be liable to the employs for all the loss he sustains, and he "shall not be held to have assumed the risk" of his injury, but there shall "be no liability under this section for any injury to which it shall be made to appear by a preponderance of evidence that the negligence of the plaintiff contributed" (section 2); and then (2) to relieve employers who accept the act in accordance with the provisions of section 3 from the burdens imposed on them in section 2. In other words, the means the Legislature devised to induce employers to accept the provisions of the act was to take from those who do not accept it about the only real defense to an action by a servant which is open to his employer at common law.

Since the defendants have not complied with the provisions of section 3, the question of law raised by their first exception is whether it can be found: (1) That the intestate was engaged in one of the employments described in section 1; (2) that he was injured by accident arising out of and in the course of the employment; (3) that their fault contributed to cause his injury; and (4) that he was free from fault.

1. One of the employments described in section 1 is "work in any shop, mill, factory or other place on, in connection with or in proximity to any hoisting apparatus, or any machinery propelled or operated by steam or other mechanical power, in which shop, mill, factory, or other place five or more persons are engaged in manual or mechanical labor." The word "mill" may be used as meaning a building in which manufacturing is carried on. It is, however, often used as meaning a manufacturing establishment, and when used in this sense it includes all that is usually intended by the plant of a manufacturing concern; that is, it includes not only the buildings in which the work is done, but everything appurtenant to them. The description of an accident that will entitle an employé to the benefits of the act as one caused by any defect in the employer's "plant" (section 2) tends to the conclusion that that is the sense in which the word "mill" is used in section 1, and so does the context, for "employment" (b) is described as "work in any shop, mill, factory, or other place," not other building, as it probably would have been if the words "mill, shop, and factory" were used in that sense. As there is nothing to rebut this presumption, it must be held that "mill," as used in section 1, includes not only the building in which the defendants' business is carried on, but their dam, flume, yard, and the ways they provide for the use of their employés. 27 Cyc. 511, II B; 20 Am. & Eng. Enc. Law, 674, note, "Common Usage"; Webster, New Int. Dict. "Mill"; 6 Cent. Dict. "Mill." The intestate, therefore, was engaged in employment (b), and the plaintiff is within the operation of the act unless, as the defendants contend, the employé's injury must be caused by a particular risk peculiar to the employment in which he is engaged in order to bring him within the provisions of the act.

It will be necessary, therefore, to consider what the Legislature intended when it enacted:

"This act shall apply only to workmen engaged in manual or mechanical labor in the employments described in this section." Section 1.

The section describes five separate employments, (a), (b), (c), (d), and (e), and there are certain risks peculiar to each which probably induced the Legislature to include those exposed to them within the operation of the act, for the dangers incident to these risks are great and difficult to avoid. Since this is so, the defendants say it follows that a person engaged in one of those employments is not entitled to relief unless his injury results from the particular risk which induced the Legislature to include those engaged in these employments within the operation of the act. To be more specific: They say that a person who is injured while at "work in any shop, mill, factory, or other place" is not entitled to the benefits of the act, notwithstanding he is injured by accident arising out of and in the course of his employment, unless his injury is caused either by the negligence of a fellow servant, or by one of the risks incident to work "on, in connection with, or in proximity to" power-driven machinery; that is, unless his injury is caused by one of the risks which induced the Legislature to include those engaged in employment (b) within the operation of the act. They say that "not every employé in a given business or establishment covered by the act is within its protection, but only those workmen * * * who are endangered" by the dangerous agencies described in the act, "while in the scope of their employment." Is this contention sound?

It will be helpful, when considering the question, to remember that it is the office of section 1 to limit the workmen who come within the operation of the act, and of section 2 to describe an accident that will entitle such workmen to its benefits. In the final...