Harvey v. Welch

• Decision Date: 06 December 1932
• Citation: 163 A. 417
• Parties: HARVEY v. WELCH.
• Court: New Hampshire Supreme Court

163 A. 417

HARVEY

v. WELCH.

Supreme Court of New Hampshire. Rockingham.

Dec. 6, 1932.

Exceptions from Superior Court, Rockingham County; Burque, Judge.

Case by James W. Harvey against James L. Welch. Verdict for plaintiff, and case transferred on defendant's exceptions.

New trial.

Case for negligence. Trial by jury, and verdict for the plaintiff. Transferred by Burque, J. upon the defendant's exceptions to the denial of his motions for a nonsuit and a directed verdict, to the allowance of certain portions of the argument of plaintiff's counsel to the jury, to the charge, to the denial of certain requests for instructions, and to the denial of a motion to set aside the verdict.

The defendant operates an automobile service station in Portsmouth, one department of which is devoted to the cleaning and repairing of radiators. The plaintiff was employed in this department, and, in cleaning radiators, was required to boil therein a solution of oxalic acid and water. The plaintiff claimed that this operation resulted in the emission of vapors containing oxalic acid, and that, as a result of breathing these vapors, he suffered from oxalic acid poisoning.

Other facts appear in the opinion.

William H. Sleeper and John W. Perkins, both of Exeter, for plaintiff.

Sewall & Waldron, of Portsmouth, and George R. Scammon, of Exeter (A. E. Sewall, of Portsmouth, orally), for defendant.

BRANCH, J.

The issue of the defendant's fault was for the jury. Having undertaken to use in his business a substance admittedly known by him to be poisonous, the defendant owed to the plaintiff a duty to use reasonable care to warn and instruct him with reference to the dangers incident to such use and to furnish him with a reasonably safe place in which to work. There was enough evidence to justify the conclusion that the defendant failed to perform either of these duties. It was conceded that no warning as to the danger of oxalic acid poisoning was given to the plaintiff and that he was not instructed to take any precautions in using the material furnished to him. It might also be found that the means adopted by the defendant to carry off the vapors which resulted from the boiling process were inadequate.

The argument that the defendant had no actual knowledge as to the physiological effect of oxalic acid fumes, if well founded in fact, is not effective in law to absolve him from liability. Being under a positive duty to exercise care for the safety of his servant, he was bound to make reasonable inquiry for the purpose of informing himself of the natural consequences of using the material which he furnished. A master "must take into account the properties of such substances as he employs for the purposes of his business and the operation of familiar physical laws upon these substances." 3 Labatt, Master & Servant, § 1041; 39 C. J. tit. M. & S. § 604. Therefore he is chargeable with knowledge of the fact "that the fumes given off by various substances used in industrial processes are poisonous to persons who inhale them." 3 Labatt, M. & S. § 1041, and cases cited; note to Pinkley v. Chicago, etc., R. Co. (246 Ill. 370, 92 N. E. 896) in 35 L. R. A. (N. S.) 679; note to Zajkowski v. American, etc., Co. ([C. C. A.] 258 F. 9) in 6 A. L. R. 348, 355; Gobreclit v. Beckwith, 82 N. H. 415, 420, 135 A. 20, 52 A. L. R. 858; Thompson v. United Laboratories Co., 221 Mass. 276, 280, 108 N. E. 1042; Mooney v. Monark, etc., Co., 317 Mo. 1255, 298 S. W. 69; Baumgartner v. Pennsylvania, etc., Co., 292 Pa. 106, 140 A. 622.

Although the defendant was chargeable with knowledge of the possible deleterious effects of oxalic acid vapors, the plaintiff was not. He was entitled to assume that the instrumentalities and materials furnished by the defendant were reasonably safe to use. Whitcher v. Boston & M. Railroad, 70 N. H. 242, 247, 46 A. 740; Thompson v. Hayward & Company, 71 N. H. 174, 176, 51 A. 633, 93 Am. St. Rep. 504; Kruger v. Exeter Mfg. Co., 84 N. H. 290, 297, 149 A. 872. Hence it cannot be held as a matter of law that the plaintiff assumed the risk of injury from this cause.

The defendant argues that the plaintiff learned early in May, 1929, that he was suffering from the effects of oxalic acid poisoning and that he was guilty of contributory negligence in continuing his work after that time. This argument finds no basis in the testimony. Although a physician testified that upon May 7, 1929, he made a diagnosis of oxalic acid poisoning, he did not say that he informed the plaintiff of his...