Jacques v. Great Falls Manuf'g Co.

• Citation: 22 A. 552,66 N.H. 482
• Parties: JACQUES v. GREAT FALLS MANUF'G CO.
• Decision Date: 31 July 1891
• Court: Supreme Court of New Hampshire

22 A. 552

66 N.H. 482

JACQUES

v. GREAT FALLS MANUF'G CO.

Supreme Court of New Hampshire. Strafford.

July 31, 1891.

Exceptions from Strafford county; before Justice A. P. Carpenter.

Action by Jennie Jacques against the Great Falls Manufacturing Company, to recover damages for personal injuries. Judgment for plaintiff. Defendant brings exceptions. Exceptions overruled.

The plaintiff was employed by the defendant in its cotton-mill as a weaver, and had charge of six looms. She adduced evidence tending to show that the shuttle would not fly out of a loom unless the machinery was defective or out of repair; that she knew nothing about the machinery, and was not allowed to meddle with it; that in case it did not properly operate she was required to call upon John C. Burke, a loom-fixer employed by the defendant, whose duty was to look after and keep in proper repair the machinery of the looms operated by the plaintiff; that about 10 o'clock in the forenoon of December 12, 1889, the shuttle flew out of her loom numbered 315; that in accordance with instructions she thereupon called on Burke, who examined the loom, made whatever repairs he thought necessary, and set it running; that about 11 o'clock of the same day the shuttle caught in the "binder" or in the" picker;" that she thereupon called on Burke, who again examined the loom, made such repairs as he deemed necessary, and put it in motion; that shortly afterwards, and before 12 o'clock, the shuttle flew out, and struck her in the eye. She testified that the behavior of loom 315 made her afraid of it, and that she watched it more closely than the other looms. A motion for a nonsuit was denied, and the defendant excepted. The defendant called as a witness William S. Marston, one of its overseers, who testified, among other things, that under him Burke had the sole and exclusive charge of the machinery of the looms operated by the plaintiff; that the plaintiff was not permitted to meddle with it; that in case the looms, for any cause, did not properly operate, her duty was to call Burke; that when he examined the looms, repaired them, if necessary, and set them running, the plaintiff had the right to understand that they were in perfect order, and could be safely operated. The defendant requested the court to instruct the jury that Burke, section-hand in No. 3 weave-room of the defendant's corporation, was not a vice-principal of the defendant, but was a co-servant with the plaintiff, for the following reasons: that, according to the testimony of William S. Marston, Burke was employed in the common and general employment of manufacturing cotton cloth under the same general control, and paid by the same principal; that Mr. Burke, Mr. Hobart, Mr. Marston, himself, and even the superintendent of the defendant's mills, were in the common employment of the defendant, and working to the same end, viz., the manufacture of cotton cloth, and under the control of the officers of the company higher in rank and responsibility. The request was denied, and the defendant excepted.

Russell & Boyer, for plaintiff.

W. S. & D. R. Pierce, for defendant.

CLARK, J. The motion for a nonsuit presents the question whether the jury could properly find a verdict for the plaintiff upon the evidence submitted. Paine v. Railway, 58 N. H. 611. The evidence produced by the plaintiff—that the shuttle would not fly out of a loom unless the machinery was defective or out of repair; that the plaintiff had no knowledge of the machinery, and was not allowed to meddle with it, and, in case it did not operate properly, was required to call on Burke, a loom-fixer employed by the defendant to look after the looms operated by the plaintiff, and keep them in proper repair; that the shuttle flew out of one of her looms about 10 o'clock in the forenoon of the day of the injury, and she notified Burke, who examined it, made whatever repairs he thought necessary, and Ret it running; that at 11 o'clock the shuttle caught in the "binder" or in the "picker,"and she again called on Burke, who again examined the loom, repaired it, and put it in operation; that shortly after, and before 12 o'clock, the shuttle flew out, and struck...