Kfsuger v. Exeter Mfg. Co.

• Decision Date: 01 April 1930
• Docket Number: No. 2324.,2324.
• Citation: 149 A. 872
• Parties: KFSUGER v. EXETER MFG. CO.
• Court: New Hampshire Supreme Court

149 A. 872

KFSUGER

v. EXETER MFG. CO.

No. 2324.

Supreme Court of New Hampshire. Rockingham.

April 1, 1930.

SNOW and ALLEN, JJ., dissenting.

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

Case at common law by Adolph G. Kruger against the Exeter Manufacturing Company to recover for personal injuries. After verdict for the plaintiff, the cause was transferred to the Supreme Court on defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict.

Judgment on the verdict.

There was evidence from which the following facts might be found: The plaintiff had worked for forty years in the defendant's factory, and for thirty years had been a mangle tender, operating the machine which caused his injuries, and which was known as a water mangle. The accident occurred while he was adjusting the friction clutch of this machine. The external element of this clutch consisted of a twenty-eight inch metal pulley which ran loose upon the main shaft of the mangle at a speed of 160-200 revolutions per minute when the clutch was not engaged. There was no way of stopping this pulley without shutting down the mill. It had six spokes and an eight-inch rim carrying a seven-inch belt by which power was taken from an overhead shaft. The spokes of this pulley did not meet the rim at its center, but were attached close to one edge thereof, thus providing, inside the rim, a cylindrical space about five inches deep in which the clutch mechanism was installed. This consisted of a stout metal cross-member of complicated construction, referred to in the evidence as a "spider," which was keyed to the shaft of the mangle and carried at its extremities two clutch shoes or "dogs" which came in contact with the inner surface of the rim of the pulley when the clutch was engaged. The position of these shoes was controlled by four adjustment nuts, each of which was held in place by a set screw having a half inch square head and projecting from the back side of the cross-member. At each side of the cross-member there was a large unprotected opening through which the spokes of the pulley could be seen, and past which they traveled at the rate of twenty spokes per second.

Upon the morning of the accident, the machine would not start, and the plaintiff was directed by his superintendent to make a temporary adjustment of the clutch. The pulley was then running. The plaintiff claims that as he was tightening one of the set screws with a monkey wrench "something gave way," the wrench slipped off the head of the screw, came in contact with the spokes of the pulley, and was thrown back into his face, inflicting very severe injuries, from which total blindness has resulted.

Other facts appear in the opinion.

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

E. L. Guptill, John L. Mitchell, and Ralph G. McCarthy, all of Portsmouth, for defendant.

BRANCH, J.

The evidence of the defendant's negligence was abundant. It is plain that the plaintiff received a specific order to perform an extremely dangerous task. Any adjustment of the clutch made while the pulley was running necessitated the use of tools inside the circumference of the revolving rim, in close proximity to the moving belt, and within four or five inches of the rapidly whirling spokes. From the testimony of the plaintiff it appears that he had the first two perils, from the rim and the belt, definitely in mind. The reality of the rim danger was evidenced in a striking manner by the fact that defendant's expert received a cut or burn on his little finger while making an experimental adjustment of this clutch before he testified. There was expert testimony to the effect that no adjustment ought to be allowed "with the machinery going." Moreover, this was a very difficult clutch to adjust under the circumstances "owing to the wear and the fine adjustment necessary between the shoe and the rim of the pulley." It appeared that this adjustment should be made to a sixteenth of an inch, and, in doing the work, it was necessary to use care and skill to prevent the shoe from coming in contact with the revolving rim. If it happened to "scuff on there a little" the clutch might "kick over" or "scuff over a little bit," and, if this happened while the workman was using a wrench, it "would tend to throw the wrench from his hand." There was evidence that the very act of tightening a set screw, which the plaintiff was performing at the time of the accident, might produce this effect. The net result of the evidence was to corroborate the testimony of the plaintiff's expert that the work of adjusting this clutch "should be done by a mechanic with a gauge and proper tools."

It was very clear that the wrench furnished by the defendant and used by the plaintiff was unsuitable for this work in respect to both type and size, and that, in mechanical condition, it was extraordinarily defective. It was a twelve-inch monkey wrench, and plaintiff's expert testified that "no mechanic would ever think of using a twelve-inch monkey wrench on a small set screw like that." Either a socket wrench or a forged wrench should be used because there is "very little possibility of these wrenches slipping. * * * Any wrench with a solid jaw is preferable to the best kind of a monkey wrench." Furthermore, there is much more danger that a big wrench will slip when used on a small nut than on a large one, because "with your extra pressure on there it will slide right around the corner of that nut," and this danger is again increased if the jaws of the wrench are placed endwise over the top of the nut instead of sidewise around it. Mechanics are instructed never to use a monkey wrench in that position. The limited space in which the plaintiff's work had to be done prevented the use of a twelve-inch wrench in the proper sidewise position "on account of the rim of the pulley turning the belt in the way," so that the plaintiff was forced by necessity to use it in the most dangerous manner possible.

The mechanical defects in this particular wrench were such that it ought long ago to have been withdrawn from service. The wooden part of the handle was gone, leaving only the steel shaft to hold it by. The socket of the adjustment screw which controlled the position of the inner jaw was so worn that the screw would not stay in position. An attempt had been made to obviate this defect by wrapping a wire around the screw and body of the wrench, but this attempt was only partially successful, and the result was that the screw did not hold the jaw firmly in place. It was likely to give way when pressure was applied. The jaws themselves were considerably worn so that they did not meet squarely.

The plaintiff had never been instructed as to the dangers involved in making an adjustment of the clutch while the pulley was in motion, or the correct method of doing the work, or the special danger of using a large monkey wrench for that purpose, or the additional dangers incident to the use of this particular wrench. It might, therefore, be found that the defendant was negligent in putting the plaintiff to work in an unsafe place with a defective tool and without instructions.

The two contentions most strongly urged by the defendant are (1) that under the evidence the cause of the accident was wholly a matter of conjecture, and (2) that the plaintiff failed to sustain the burden of proving that he did not assume the risk of such an injury as he received.

1. Although there is no direct testimony to explain how the plaintiff was hurt, the circumstances are sufficient to support a finding that the accident happened as he claimed it did. His version of the occurrence ends with his statement that as he was tightening the set screw he felt something give way, after which he knew nothing. It appeared, however, that, while adjusting the clutch, the plaintiff stood facing the machine and the rear of the clutch upon the right-hand side of the shaft which carried the shifting mechanism. The position of the cross-member was such that the set screw was about three and one-half feet above the floor and about seven inches-above and seven inches to the left of the shaft, so that the plaintiff's bands as he worked were at about the height of his waist. Three fingers of his right hand had previously been amputated. In tightening the set screw he held the steel shaft of the handle in his left hand, and with his right held the head of the wrench so as to keep it tight on the head of the screw. The position thus assumed was demonstrated to the jury, and from the course of the oral argument we infer that the plaintiff thus undertook to perform the operation of tightening the set screw with his hands crossed. If this be so, the use of his hands in such an awkward manner is probably explained by the amputation of his fingers above referred to.

In regard to the situation which existed at the moment preceding the accident, he testified as follows:

"Q. When that gave way do you know whether your wrench had hold of the adjustment nut all right? A. Yes.

"Q. And you had your hand there to see that it was on all right? A. That it wouldn't slip off; it was natural."

With things in this posture the most obvious explanation for his subsequent loss of control over the wrench is that the clutch suddenly kicked over because the shoe was brought in contact with the rim of the pulley.

After the accident, the plaintiff was found on the floor in a kneeling position facing the clutch, resting on his right knee and right hand, with his left arm caught in the shifting mechanism of the clutch and his head hanging down. The wrench lay in a pool of blood underneath the clutch. The plaintiff's injuries consisted of "a compound fracture, that is, an open fracture, of the frontal sinus on the right side of his head, with a complete fracture of both upper jaws; the destruction of the left eye and the fracture of the orbit so...