Morin v. Nashua Mfg. Co.

• Decision Date: 05 March 1918
• Citation: 103 A. 312,78 N.H. 567
• Parties: MORIN v. NASHUA MFG. CO.
• Court: New Hampshire Supreme Court

103 A. 312

78 N.H. 567

MORIN

v. NASHUA MFG. CO.

Supreme Court of New Hampshire. Hillsborough.

March 5, 1918.

Exceptions from Superior Court, Hillsborough County; Peaslee, Judge.

Petition by Aimee Morin, administratrix of the estate of Alphonso Lizotte, against the Nashua Manufacturing Company for new trial after decision (78 N. H. 354, 100 Atl. 757).From an order granting the petition, the defendant excepts.Exception overruled, and motion for rehearing denied.

Doyle & Lucier and A. J. Lucier, all of Nashua, for plaintiff.Branch & Branch and Randolph W. Branch, all of Manchester, for defendant.

WALKER, J.By the former decision in this case(Lizotte v. Nashua Mfg. Co., 78 N. H. 354, 100 Atl. 757) it was held upon the facts then before the court that Lizotte could not recover under the statute(Laws 1911, c. 163, § 1) because his employment in the defendant's mill did not require that any part of his work should be performed, in the language of the statute, "on, in connection with, or in proximity to, any hoisting apparatus, or any machinery propelled or operated by steam or other mechanical power."At the hearing upon the plaintiff's motion for a new trial it appeared that the deceased worked in a room where there was a movable elevator used for raising and lowering heavy cases of goods, which was operated by hand power.Adjacent to this room was the stamping room, containing a power-driven press used for imprinting the brand or trade-mark on the finished goods.In another adjoining room there were power-driven elevators, upon which the deceased and other employes rode while in the performance of their work.Little doubt can be entertained that the hand elevator is a "hoisting apparatus" within the meaning of the statute, and that the stamping machine and the power-driven elevators are also included in the statutory language.The fact that the stamping machine had not been operated for three weeks before the accident, on account of a strike, did not remove it from the class of machines whose operation involved more or less danger to the employe, in the immediate vicinity.It was liable to be put in motion at any time.Its operation was not permanently discontinued.The applicability of the statute to a particular machine does not depend upon its continuous operation while employes are at work.Its liability to be put in motion at any time renders it a dangerous instrumentality installed by the manufacturer for use in his mill of factory.

The evidence also justifies a finding that the deceased's work of moving boxes of goods in the storehouse took him into all three rooms; but he had nothing to do with the operation of the machines, and was not injured thereby.

From a finding of the foregoing facts it would seem to follow that the storehouse, which is a part of the defendant's manufacturing plant (Boody v. Company, 77 N. H. 208, 90 Atl. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280), and in which the deceased was employed, contained dangerous mechanical instrumentalities of the character contemplated in the statute, in this respect the present case differs materially from that presented on the former transfer.It did not then appear that the deceased's work brought him in proximity to any dangerous machine, and it was held that the statute did not apply, while it now appears, or the fact may be found upon the evidence, that in the performance of his duties he was within the danger zone created by the machinery.It is not essential that all his work should be done in proximity to dangerous machines or that the injuries complained of should result from such machines.If his employment, under a reasonable construction, exposed him to the dangers incident to proximity to machinery, he was an employe under class (2) of the statute, and was entitled to the benefit of such classification.

In the former opinion in this casethe court in discussing the case of Boody v. Company, supra, say (78 N. H. 357, 100 Atl. 758):

"Boody was employed as a handy man about the factory.He had no particular place to work, but he might be called upon to perform work anywhere in the mill.Hence some of his work inevitably must have been 'on, in connection with, or in proximity to' power-driven machinery.He was therefore engaged in employment (b); and the court held that, as the plaintiff[Lizotte] was so employed, and was killed by an accident arising out of and in the course of his employment, the action to recover damages for his death could be maintained, even though his death was not caused by the negligence of fellow servants, or by one of the risks incident to work 'on, in connection with, or in proximity to' power-driven machinery.We believe this broad and liberal construction of the statute,...