Bouthet v. Int'l Paper Co.

• Decision Date: 07 June 1910
• Citation: 75 N.H. 581,78 A. 650
• Parties: BOUTHET v. INTERNATIONAL PAPER CO.
• Court: New Hampshire Supreme Court

78 A. 650

75 N.H. 581

BOUTHET

v. INTERNATIONAL PAPER CO.

Supreme Court of New Hampshire. Coos.

June 7, 1910.

On Rehearing, Dec. 6, 1910.

Transferred from Superior Court, Coos County; Wallace, Judge.

Action on the case by George E. Bouthet, administrator of Emerigile Rousseau, deceased, against the International Paper Company for the death of the deceased. There was a verdict for plaintiff, and the cause was transferred on defendants' exception to the denial of a nonsuit. Overruled.

The evidence tended to prove the following facts: In the defendants' mill at the time in question there was a revolving shaft with a fixed pulley upon it, and some 15 feet distant therefrom was another shaft equipped with a similar pulley, which when in motion operated a sawdust conveyor. The sawdust conveyor was not always in motion, and it was customary for the men, when starting it up, to place a belt upon the pulley on the revolving shaft and then upon the pulley that operated the conveyor. The belt when placed upon the pulley on the driving shaft and drawn back toward the conveyor pulley was liable to stick and snap back toward the revolving shaft and wind up on it, and such an occurrence was rendered more probable from the fact that the pulley on the conveyor shaft overhung the bearing in which the shaft ran. It was while Rousseau was attempting to do this work that he was caught in the belt, drawn upon the revolving shaft, and killed. There was no evidence that Rousseau was notified of the danger by the defendants, or that it was ever spoken of in his hearing. He was a man 22 years old, of average intelligence, and had been in the defendants' employment for two years. For a year or a year and a half of the time he had acted as spare man, and in this capacity it was his duty to assist in putting on the belt. The conveyor had to be started up some days as often as three times, while at other times not oftener than once in three days. Rousseau had adjusted this particular belt many times. On the day of the accident, when he first attempted to place it upon the pulleys, it had pulled off the conveyor pulley and snapped back toward and under the revolving shaft. There was no testimony that he had ever seen the belt snap back and wind up on the revolving shaft, either when he was putting it on alone or when assisting others in doing so; but it appeared that this bad occurred with most of the men who testified at the trial, when they were doing this work.

Sullivan & Daley and Burritt H. Hinman, for plaintiff.

Rich & Marble and Drew, Jordan, Shurtleff & Morris, for defendant.

YOUNG, J. The conveyor pulley is on the end of the shaft. Consequently, if the belt sticks to the driving pulley hard enough to pull it away from the man who is attempting to put it on the conveyor pulley, there is nothing to prevent it from winding up on the driving pulley, and, if it happens to catch him, winding him up in it. It is the danger peculiar to this condition of the defendants' instrumentalities of which the plaintiff complains. It was the defendants' duty to do what the ordinary man would do under these circumstances to enable Rousseau to do his work in safety; but as the law is usually administered, it cannot be found they failed to perform that duty unless this condition was an abnormal one, and the risk incident thereto one of which they did, and he did not, know. It is conceded it can be found that this condition was abnormal, and that they knew of the risk incident thereto; consequently, it can be found that they were in fault, if there is any evidence tending to prove that Rousseau did not know of it The only knowledge of belts and the dangers incident to using them which Rousseau possessed was what he had acquired while working in the defendants' mill. Although he had seen this belt pull away from him on one or two occasions, he bad never seen it wind up on the driving pulley as it did on the day of the accident. Notwithstanding the defendants knew that that was liable to happen, they never told him of it, and it is not common knowledge that such is the fact. From these facts it can be...