Demars v. Glen Mfg. Co.

• Citation: 40 A. 902,67 N.H. 404
• Parties: DEMARS v. GLEN MFG. CO.
• Decision Date: 17 March 1893
• Court: New Hampshire Supreme Court

40 A. 902

67 N.H. 404

DEMARS

v. GLEN MFG. CO.

Supreme Court of New Hampshire. Coos.

March 17, 1893.

Exceptions from Coos county.

Action on the case by Frank Demars against the Glen Manufacturing Company for personal injuries. There was a verdict in favor of plaintiff, and defendants bring exceptions. Judgment on the verdict.

The plaintiff was employed by the defendants, as a carpenter, to make repairs about their mill; and occasionally he used a saw which was propelled by power transmitted to it from a large pulley upon the main shafting of the mill by means of belts, pulleys, and shafting. At one side of the large pulley was a device called a "belt catcher," the purpose of which was, like that of a loose pulley, to receive the belt running over the driving pulley when not in use. The belt was shifted back and forth between the driving pulley and the belt catcher by means of a horizontal bar located just above the belt at the top of the pulley, and at right angles with it; having a pin projecting from its under surface on each side of the belt, and a lever connected with its opposite end, by which it was moved. While using the saw the plaintiff noticed that the belt was running off the large pulley on the side opposite the belt catcher, and he attempted to push it back with a stick held in his hands, when the stick was hurled against his shoulder and side, causing the injury complained of. He contended that he could not have got the belt back onto the pulley by using the lever, and that the belt catcher, bar, and lever were not reasonably adapted to the uses for which they were intended. There was evidence tending to show that the plaintiff was inexperienced in the use of machinery; that during his employment by the defendants he had shifted the main belt a few times without receiving injury; that he had seen other employes in the mill push the belt on with a stick; that the use of the catcher was attended with danger, and that it would not operate when the belt ran off on the opposite side; that it was put in as an experiment; that the pulley was out of repair, so that it wabbled, and the belt was old, notched on the sides, and badly worn, and was too wide for the pulley; that these defects, which were apparent to the plaintiff, caused the stick to fly and strike the plaintiff; that the defendants had not warned him of the danger he incurred, and he did not understand that there was any special danger in pushing the belt on with a stick; and that if, instead of the catcher, there had been a loose pulley in connection with the driving pulley, the accident would not have happened. The Jury took a view, and examined the machinery in question. The defendants moved for a nonsuit, and, at the close of the evidence, for a verdict, which motions were denied, subject to exception. On cross-examination of the defendants' general manager, the following question was asked: "Is this case being defended by your company, or by an accident insurance company?" The question was excluded, and the jury were instructed that it was of no consequence. The defendants excepted because it was asked in the hearing of the jury. The court found that the verdict was not affected by the statement of the objectionable question in their hearing.

Ossian Ray, Bingham & Bingham, and Robert N. Chamberlain, for plaintiff.

Drew & Jordan, Will P. Buckley, Daley & Goss, and Everett Fletcher, for defendants.

PER CURIAM.¹ 1. Upon competent evidence, the jury have found that the defendants were negligent in furnishing the plaintiff with defective machinery, in consequence of which the accident occurred; but it is claimed that, because he knew of the existence of these defects, he assumed the risk of being injured thereby. It was a controverted fact whether the lever and its connections were reasonably adapted to the use of putting the belt back when it ran off the pulley on the side opposite the belt catcher, or whether the method adopted by the plaintiff was reasonably prudent and necessary under the circumstances. This question of fact has been determined by the Jury in favor of the plaintiff, and is not open to review in the law term. But the defendants contend that, because the plaintiff knew of the defects in the machinery, he assumed the risk of injury resulting from his attempt to replace the belt on the pulley. The simple fact that he knew that the pulley wabbled, and that the belt was old and in a poor state of repair, is sufficient, it is claimed, to prevent his recovery. But his knowledge of apparent defects in the appliances he was called upon to use would be immaterial, unless he also understood, or is presumed to have known, that those defects, either singly or in conjunction, would expose him to special and peculiar danger when using the machine. A skilled mechanic may...