Osman v. W. H. McElwain Co.
| Decision Date | 08 November 1916 |
| Citation | 78 N.H. 597,99 A. 287 |
| Parties | OSMAN v. W. H. McELWAIN CO. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Branch, Judge.
Action by Hassan Osman against the W. H. McElwain Company. Verdict for defendant, and case transferred from the superior court on plaintiff's exception. Exception sustained.
Case, for negligence. Trial by jury, and verdict for the defendants. The defendants were subject to and had not accepted the provisions of the Employers' Liability Act (Laws 1011, c. 163). The plaintiff was injured while in the employ of the defendants in their tannery, and while at work on certain vats. The jury took a view of the premises where the accident occurred. The plaintiff's evidence tended to prove that at the time of the accident, the plaintiff was at work, toggling hides on a wet, slippery floor, two feet from an uncovered vat filled with poisonous liquid; that the floor was on a level with the top of the vat; that a reeling machine which he had been working with, and had left north of the vat where he was working, started and came down its track, and hit him on the back as he was stooping over; that he turned around to stop the machine, and slipped and fell into the vat; that the reel started and run down on the track because it was in a defective condition; that there was a cover with which to cover the vat into which the plaintiff fell, and that before he began toggling the hides, he went to cover up the vat, but that his boss told him to leave it uncovered. The plaintiff in his opening claimed that the reel was defective, and that the place where the plaintiff was required to work was not reasonably safe, by reason of the wet, slippery floor, and the uncovered vats. The same grounds of negligence were also urged in the plaintiff's argument to the jury. The court instructed the jury that unless the plaintiff was pushed into the vat by the reel, and that the reel was defective, their verdict must be for the defendants. The court required the jury to answer the following question: "Was the plaintiff pushed into the vat by a defective reel?" and instructed them that, if their answer to this question was in the negative, their verdict should be for the defendants. The plaintiff excepted to the charge as follows:
"The plaintiff excepts to that portion of the charge which limits the plaintiff's right to recover to a defective instrumentality, viz. to a defective reel, and to the specific instructions near the end of the charge that, unless the special question which is submitted is answered in the affirmative, the verdict should be for the defendant."
Taggart, Burroughs, Wyman & McLane, of Manchester, for plaintiff. Jones, Warren, Wilson & Manning, of Manchester, for defendants.
The instructions of the court, to which exception was taken by the plaintiff, required the jury to return a verdict for the defendants, unless they found that the accident was caused by a defective reel. If the reeling machine was not defective, and the defendants were not in fault because it came down and struck the plaintiff, still this would not...
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