O' Hare v. Cocheco Mfg. Co.

• Decision Date: 09 November 1901
• Citation: 51 A. 257,71 N.H. 104
• Parties: O' HARE v. COCHECO MFG. CO.
• Court: New Hampshire Supreme Court

51 A. 257

71 N.H. 104

O' HARE

v. COCHECO MFG. CO.

Supreme Court of New Hampshire. Strafford.

Nov. 9, 1901.

Exceptions from Strafford county; before Justice Young.

Action by John O'Hare against the Cocheco Manufacturing Company. Verdict for plaintiff, and defendants excepted. Judgment for defendants.

The evidence tended to prove the following facts: The plaintiff was about 20 years old, and was employed in the dry room of the defendants' printery, running a drying machine. Cloth comes from the looms in pieces which average about 50 yards in length, but when it comes to the printery these pieces are sewn together so as to form a continuous band of cloth. The plaintiff's machine was used for "chemicing" and starching the cloth, which process is next to the last to which the cloth is subjected before it is finished. The cloth comes to the machine from the room above, and runs under a wooden bar called the "tension bar"; then over a bar with a fluted brass surface, called the "scrimp bar"; then between two rolls called the "nip of the mangle," which is similar to a wringing machine. The lower roll is covered with rubber, runs in the starch or chemical as one or the other is in use, and saturates the cloth; and the two rolls squeeze out all the moisture possible. From the mangle the cloth runs under a small wooden roll, situate one inch from a heavy metal cylinder called the "expander." The surface of the expander is made in sections, and these move from a point near the small roll, diverging in both directions from the center in a line parallel with its axis for about two-thirds of a revolution, and in the next third falling back into place. This motion has a tendency to make the cloth wider. The expander is not operated by any independent power, but only by the traction of the cloth passing over it. After the cloth leaves the expander it goes over the driers, which are metal cylinders 24 inches in diameter, filled with steam under pressure. They are called "cans," and are so arranged that the top of the first one is practically on a line with the axis of the expander, and its surface within an inch of the expander, so that a person's hand, caught on the expander, would be drawn down between it and the can, and crushed and burned. The plaintiff's work required him to stand in front of his machine, facing the cloth as it came down at normal width from the room above. There was nothing to prevent him from seeing holes in the cloth, if there were any, except the speed at which the cloth moved through the machine, which averaged about one piece of 50 yards per minute. His duty was to take out double edges and scrimps, steer the piece, and change the liquid in which the rubber roll ran. He also started and stopped the machine. Double edges are folds in the edges of the cloth, and usually show as the cloth comes down from the room above. These are taken out on the tension bar. Sometimes they form between the scrimp bar and the nip of the mangle, and sometimes between the nip and the expander. At the time of the accident the plaintiff had been at work for the defendants about 18 months,—part of the time as a spare hand in the room in which he was hurt and the one above it, and for about six months on the machine where he was injured. No special instructions were given him as to the proper place to take out double edges, and he was accustomed to take them out both on the tension bar and on the expander, where the foreman had seen him doing this work. Shortly before the accident the foreman called to the plaintiff from the room above to go around behind and take out the double edges; and the plaintiff, in trying to take one out on the expander, was injured; his band being caught, as he testified, in a hole in the cloth in the middle of a piece, and drawn in between the expander and the hot cylinder next it. The plaintiff knew that if his hand, from any cause, was caught in the cloth passing over the expander, he was liable to be injured; but he testified that he had never been told that there might be holes in the cloth, and that he had no knowledge of any, except at the seams, where the pieces from the looms were sewn together. The defendants knew there were liable to be holes, varying from the size of a marble to the size of a man's head, in the cloth put through the plaintiff's machine; and their superintendent testified that about 2 pieces in every 100 had holes in them. The defendants' motions for a nonsuit and to direct a verdict in their favor were denied, and they excepted.

Alfred S. Hayes, for plaintiff.

John Kivel and George T. Hughes, for defendants.

PARSONS, J. It is not contended that there was any defect in the machine upon which the plaintiff was injured, or that the obligation of the master to provide reasonably safe machinery was not fully performed. Neither is it claimed that the holes in the cloth, charged as the cause of the plaintiff's injury, were due to any carelessness or unskillfulness of the master in the process of manufacture adopted. So far as appears, such defects are liable to arise in the prevailing methods of making cloth. At least, there is no attempt to prove the contrary. The only ground of negligence alleged against the defendants is that the plaintiff was not informed of the possible or probable occasional existence of holes in the cloth. "There are limits to the obligation of an employer to point out the dangers of proper machinery. The obligation is imposed mainly for the sake of the young, who have not the experience or power to look out for themselves which are to be expected in adults, or, in the case of adults, where there are concealed defects." Robinska v. Mills, 174 Mass. 432, 433, 54 N. E. 873, 75 Am. St. Rep. 304; Collins v. Car Co., 68 N. H. 196, 197, 38 Atl. 1047. The master is under no obligation to give warning of dangers incident to the service of which the servant knows or ought to know. The servant assumes the risk of injury from dangers incident to the service which are obvious, or of which he knows, or which ordinary care would disclose to him. Henderson v. Williams, 66 N. H. 405, 413, 23 Atl. 365. It is the duty of the servant "to use ordinary care to avoid injuries to himself. He is under as great obligation to provide for his own safety from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part, as the master is to provide it for him. * * * 'It is the duty of the employé to go about his work with his eyes open. He cannot wait to be told, but must act...