Dubuc v. Amoskeag Indus., Inc.

• Decision Date: 01 October 1940
• Citation: 15 A.2d 867
• Parties: DUBUC v. AMOSKEAG INDUSTRIES, Inc.
• Court: New Hampshire Supreme Court

15 A.2d 867

DUBUC

v. AMOSKEAG INDUSTRIES, Inc.

Supreme Court of New Hampshire. Hillsborough.

Oct. 1, 1940.

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

Action on the case by Honore Dubuc against Amoskeag Industries, Inc., to recover for injuries sustained while in the defendant's employ. Transferred on defendant's exceptions after verdict for plaintiff.

Judgment on the verdict.

Case, at common law, to recover for personal injuries sustained by the plaintiff on April 7, 1937, while in the defendant's employ. The defendant had accepted the provisions of the Employers' Liability and Workmen's Compensation Act. Trial by jury and verdict for the plaintiff.

At the time the plaintiff received his injuries, he and two other workmen (Paquette and Hokanson) were cutting through the wall of a brick building on the defendant's premises for the purpose of taking out certain machinery. Before installing adequate supports they cut through the entire thickness of the wall whereupon the upper section fell, crushing the plaintiff's hand and arm. The work was under the immediate supervision of Paquette, who marked with chalk the outline of the hole to be cut and told the plaintiff and Hokanson how to do the cutting. The plaintiff was employed as a common laborer and had never performed that kind of work before.

Transferred by Johnston, J., on exceptions to the denial of motions for a nonsuit and directed verdict, to the exclusion of certain evidence, to a portion of the judge's charge, and to the refusal of the court to grant certain requests for instructions.

McLane, Davis & Carleton and John P. Carleton, all of Manchester, for plaintiff.

Alvin A. Lucier, of Nashua, for defendant.

MARBLE, Justice.

According to the uncontroverted evidence there was a safe method of performing the work in question by the insertion of a supporting beam, or "header", after the wall had been cut halfway through. The following paragraph is taken from the testimony of the foreman under whom Paquette was working as gang boss:

"Q. Was this job done in a safe manner or unsafe manner? A. Unsafe manner. * * *

"Q. Done in the way it was done, you would expect the wall would fall down, would you not? A. Yes, sir. * * *

"Q. And Paquette was in complete charge of the work and of how the work was to be done? A. Yes; while I was away.

"Q. And if he had done it in the proper manner, there would be no opportunity for the wall to fall, would there? A. No, sir. * * * *

"Q. What was the standard, usual way to do the work? A. The usual way, on heavy work like that, was to cut halfway through to give ample space for your header, and put that header on one side, and doing your cutting on the opposite side.

"Q. Had you previously given those orders, those general orders to the men under you, for doing that work? A. I don't remember if I had."

The defendant's general foreman testified to the same effect. The defendant had never had occasion to cut through so thick a wall before. The situation was "quite unusual", and special precautions were required.

The plaintiff "was a truck driver most of the time." He had had no experience whatever in the construction or demolition of brickwork, and acted under the direct orders of his superior. He did not know "that unless something was put in there to hold up the bricks, the bricks would come down."

Paquette testified that it was his duty to see that the work was done in a safe manner and that he assured Hokanson and the plaintiff "just a minute or two before the wall collapsed that it was safe for them to stay there and work."

This evidence clearly warranted a finding that the defendant did not furnish the plaintiff reasonable protection against a danger likely to occur and that the plaintiff neither assumed the risk nor was guilty of contributory fault. Camire v. Laconia Car Company, 79 N.H. 531, 111 A. 340; Carpenter v. Salmon Falls Mfg. Company, 80 N.H. 77, 79, 112 A. 909; Hill v. Parker-Young Company, 81 N.H. 190, 192, 123 A. 120; Maltais v. Concord, 86 N.H. 211, 213, 214, 166 A. 267; Perreault v. Allen Oil Company, 87 N.H. 306, 309, 179 A. 365; Pickett v. Norwood Calef & Company, 89 N.H. 244, 247, 196 A. 627; Tremblay v. J. Rudnick & Sons, N.H., 13 A.2d 153.

Nevertheless, the defendant contends that the action cannot be maintained, since by virtue of section 3 of chapter 163 of the Laws of 1911, P.L. c. 178, § 10, the only right which the plaintiff had against his employer was to file a petition for compensation or to sue for injuries resulting from the defendant's wilful failure "to comply with any statute, or with any order made under authority of law."

Section 4 of chapter 163 of the Laws of 1911, P.L. c. 178, § 11, provides that "The right of action for damages caused by any such injury, at common law, or under any statute in force on January one, nineteen hundred and eleven, shall not be affected by this act" The contention that this section refers only to injuries sustained before the passage of chapter 163 cannot be seriously entertained. It was held in numerous cases antedating the re-enactment of the Employers' Liability and Workmen's Compensation Act that an injured workman whose employer has filed with the commissioner of labor his acceptance of the provisions of the act is not obliged to accept compensation but may maintain an action at common law for the injury sustained. Watts v. Derry Shoe Company, 79 N.H. 299, 109 A. 837; Bjork v. United States Bobbin, etc., Company, 79 N.H. 402, 404, 111 A. 284, 533; Sullivan, etc., Co. v. Stowell, 80 N.H. 158, 160, 114 A. 873; Moore v. Hoyt, 80 N.H. 168, 116 A. 29; Olgiati v. New England Box Company, 80 N.H. 399, 402, 117 A. 735; Paige v. M. T. Stevens & Son's Company, 80 N.H. 439, 441, 119 A. 303; Hodges v. J. Spaulding & Sons Company, 81-N.H. 101, 122 A. 794; Dervin v. Amoskeag Mfg. Company, 81 N.H. 108, 110, 122 A. 353; Hill v. Parker-Young Company, 81 N.H. 190, 123 A. 120; Zajac v. Amoskeag Mfg. Company, 81 N.H. 257, 261, 124 A. 792; Riordan v. Nashua Mfg. Company, 81 N.H. 384, 385, 127 A. 705.

In accordance with these decisions it has been consistently held since the general revision of the laws...