Hodges v. J. Spaulding & Sons Co.

• Decision Date: 28 June 1923
• Docket Number: No. 1862.,1862.
• Parties: HODGES v. J. SPAULDING & SONS CO.
• Court: New Hampshire Supreme Court

122 A. 794

HODGES

v. J. SPAULDING & SONS CO.

No. 1862.

Supreme Court of New Hampshire. Strafford.

June 28, 1923.

Action by Edgar C. Hodges, against the J. Spaulding & Sons Company. Judgment for defendant, and plaintiff excepts. Exceptions overruled.

Case for negligence. Trial by jury. The plaintiff was injured while working for the defendants as a machine fixer. He had charge of five of their cutting machines, and it was his duty to adjust the knives and keep the machines in repair. The power is applied to these machines by a friction clutch, and all that is necessary to start them is to move the lever, which controls the clutch, a few Inches. When a machine is stopped by using this lever, the only way it can be started is by using it One of these machines broke down on the day of the accident, and before the plaintiff began work on it he moved the lever as it should be moved to stop the machine, and then went to work. After working a few minutes, it started, and he was injured. He did not touch the lever after he began work on the machine, and. Read, his foreman, was the only other man who was near enough to move it.

Wm. N. Rogers, of Concord, and Mathews & Stevens, of Somersworth, for plaintiff. Lucier & Lucier, of Nashua, for defendants.

PLUMMER, J. As the defendants had accepted the provisions of the Employers' Liability Act (Laws 1911, c. 163), the plaintiff cannot recover, unless he shows that his injury was caused by the defendants' failure to perform a duty the law imposed on them for his benefit, for at common law an employee assumes the risk of injuries caused by the negligence of his fellow employees.

The plaintiff concedes that this is the law, but contends that the defendants are in fault, because they failed to provide a competent foreman. In other words, he contends that Read was both incompetent and careless, that the defendants either knew or ought to have known these facts, and that, but for their fault in this respect, the accident would not have happened. The only evidence relevant to either of these issues is the testimony of two of the defendants' employees, both machine fixers, who had worked under Read for some considerable time. They both testified that he was incompetent, that they had seen his attempt a number of different times to repair one of these machines, and that usually the machine he fixed would not do good work.

"[2] "Incompetent," when applied to an employee, is used in two very different senses: (a) As one who is not qualified to do what he is employed to do; and (b) one who is so negligent, careless, or reckless that he is liable to injure those with whom he comes in contact. The first question to be considered, therefore, is whether it can be found, either that Read could not do what he was employed to do, or that he was careless, and that the defendants either knew or ought to have known these facts. The fact Read could not keep these cutting machines in such a condition that they would do good work has no tendency to prove that he could not do what he was employed to do; for he...