Marcotte v. Maynard Shoe Co.

• Decision Date: 06 November 1912
• Citation: 85 A. 284,76 N.H. 507
• Parties: MARCOTTE v. MAYNARD SHOE CO.
• Court: New Hampshire Supreme Court

85 A. 284

76 N.H. 507

MARCOTTE

v. MAYNARD SHOE CO.

Supreme Court of New Hampshire. Sullivan.

Nov. 6, 1912.

Exceptions from Superior Court, Sullivan County; Wallace, Judge.

Action by Alfred Marcotte against the Maynard Shoe Company for personal injuries to plaintiff while employed in the rubber shop of defendant's shoe factory. Verdict for plaintiff, and defendant brings exceptions. Overruled.

The plaintiff was injured while working upon a machine known as a calender, which consisted in part of three hollow metal cylinders set one over another in an iron frame, and here designated as C, D, and E, from above downward. The cylinders were about six feet in circumference, and could be heated by steam. They were adjustable, and could be brought into close contact or separated several inches. Cylinders C and E revolved in the same direction, and D in the opposite direction. At high speed they made a complete revolution in about 14 seconds. The function of the machine was to press material which was run through it and at the same time apply heat. The bottom of the lowest cylinder (E) was a few inches above the floor, and the top of the highest one (C) was about six feet above the floor. In front of the machine, at a height opposite the point of contact between C and D and from two to three feet therefrom, was a small roll (A), upon which the cloth which was to be run through the machine was placed. From A the cloth passed between C and D; thence over roll, F, situated at the back of the machine at about the same height as A, and distant about 15 inches from the point of contact between C and D; thence downward around roll G, situated directly beneath F, and a little below the point of contact between D and E; thence between D and E, to be wound around roll B, situated 15 inches above the floor and almost directly beneath roll A. In the operation of the machine for frictioning, a substance known as "friction gum" or composition was put upon C on the front of the machine until it covered the surface of D to a depth of about an eighth of an inch. Then the cloth on A was fed between C and D and took the course above described. As the cloth passed between the cylinders, the gummy substance was pressed into it by C and D; the latter being heated. The cloth sometimes was torn or wrinkled in passing between C and D; and in that case it was necessary that an employé should grasp the edge of the fabric and guide it around F and G, and between D and E. This was what the plaintiff was doing at the time of his injury. While so engaged at the back of the machine, in a place which he alleged was insufficiently lighted, his left hand adhered to the sticky fabric, and was drawn between the cylinders; the injuries thus sustained resulting in the loss of his arm. The plaintiff's evidence tended to prove that he was ignorant of the peculiar danger incident to the work of guiding the cloth between the hot cylinders, and that he had received no warning or instruction concerning it.

The defendants excepted to the denial of their motions for, a nonsuit, and the direction of a verdict in their favor, and to the refusal of the court to give the following instructions:

"(1) If the master had provided sufficient lamps on the premises for use of the employes, so that they could readily obtain them by asking for them, it had done its duty as to lighting; and, if the foreman of the shop had neglected to have a light put on under the circumstances, still the master would not be liable.

"(2) Unless the absence of light No. 2 helped to cause the injury, then the question of the absence of that light, is immaterial and you need not consider it, and it is to have no effect upon your verdict.

"(3) If you believe the plaintiff's testimony, then the absence of light No. 2 is immaterial and you need not consider it."

The court charged the jury in part as follows: "If all the conditions of this machine upon which the plaintiff was working were known to him, and he appreciated the danger therefrom, he assumed the risk of being injured, and cannot recover. If the plaintiff had knowledge of the facts sufficient to charge him with knowledge of the danger, he assumed the risk of injury. On the other hand, if he did not know of the danger, or as a person of ordinary prudence ought not to have known of it or appreciated it, then he has not assumed the risk, and is not barred from recovery on that account. If he did know and appreciate the danger from the rolls and the sticky cloth on the rolls, in the situation in which he was placed, then he cannot recover because it was a risk which he assumed. If he did not understand and appreciate, then he is not precluded from recovering on this ground. It is the duty of the master to provide the servant with a reasonably safe place in which to perform the work required to be done, and to use ordinary care, when putting an employé at work about dangerous machinery with which he is not acquainted and where he cannot reasonably be expected to know about the dangers of his work, to instruct him as to his duties and warn him as to the dangers incident to his employment. As the case stands here, these are the only matters in which the plaintiff complains the defendants have been remiss in their duty to him, namely, failure to supply him with a proper place in which to work—that is, a well lighted place, because that is the only complaint he makes—and failure to instruct and warn him in regard to the dangers of the business. The plaintiff complains that the defendants were remiss in their duty of lighting the place of work in two respects: First, the plaintiff says that the defendants did not furnish sufficient lights whereby the place of the accident could be properly lighted; that is, he says that generally they had not made arrangements for a sufficient number of lamps whereby this place would be properly illuminated, if all were lighted. Second, he says that one of the lamps placed nearest the work was not lighted at the time of the accident. As to the first complaint, it was the duty of the defendants to exercise ordinary care to furnish suitable lamps or lights at the place of work; and, if they failed to do so, they were remiss in their duty. As to the second complaint, if the defendants furnished sufficient and suitable lights or lamps for the work, to be used by the servant as needed in the course of the work, they performed their full duty in this respect and are not liable for the negligence or failure of their servants to light these lamps, except in one contingency to which I will now call your attention. If the lamp in question— that is, No. 2 at the back of the machine— was not lighted for so long a time that the defendants ought to have discovered this neglect by ordinary care, and this light was essential to the proper lighting of the place, then, if the defendants did not see that it was lighted, their failure to do so would be negligence on their part. If the defendants installed that light and furnished for the servants sufficient lamps to be used whenever it was necessary, they are not to blame because a fellow servant of the plaintiff failed to light that lamp, unless it had been unlighted and unused for such a long time that they ought, in the exercise of ordinary care, to have known that it was habitually unlighted. In that case they would be liable. The bulb was actually gone for two weeks. There is some evidence you will consider whether they furnished enough of those that could be used any time when needed. Unless the absence of light No. 2 or any of the lights helped to cause the injury, then the question of the absence of light is immaterial, you need not consider it, and it will have no effect on your verdict; and this is so whether you find the absence of light is wholly immaterial on the testimony of the plaintiff, or any of the other witnesses in the case. This is a material thing and one you want to carefully consider. The defendants say not only that they performed their duty in respect to lighting the premises, but that whether they did or not is wholly immaterial. You will consider carefully how that...