Saucier v. New Hampshire Spinning Mills

• Decision Date: 03 November 1903
• Citation: 72 N.H. 292,56 A. 545
• Parties: SAUCIER v. NEW HAMPSHIRE SPINNING MILLS.
• Court: New Hampshire Supreme Court

56 A. 545

72 N.H. 292

SAUCIER

v. NEW HAMPSHIRE SPINNING MILLS.

Supreme Court of New Hampshire. Merrimack.

Nov. 3, 1903.

Transferred from Superior Court; Peaslee, Judge.

Action by Joseph Saucier against the New Hampshire Spinning Mills. Judgment was against plaintiff, and he excepted. Exceptions overruled.

The plaintiff is a deaf mute, and a skillful operator of machines known as "revolving-top flat cards." At the time of his employment he informed the defendants that he was familiar with such cards, and was an experienced stripper, and he was hired as such. He had worked for the defendants about a week prior to the accident, and was not in any respect instructed or warned. There was evidence that in all mills except the defendants' it is the duty of the grinder to clean the hinges and jamb of the door of the carding machines. One Chenette was employed by the defendants on the morning of the day of the accident, and was set to work with the plaintiff, stripping cards; the plaintiff showing him how to do the work. It was the plaintiff's duty to open the doors of the machines, and Chenette's duty to close them. There was some evidence tending to show that the door of the machine upon which the plaintiff was injured was left open by Chenette, but there was no evidence of other negligence on Chenette's part, or that he was not competent to close the door. While the plaintiff was operating the machine, his hand came in contact with the card clothing by reason of the door in question being open, and he received the injury for which he seeks to recover. Experts called by the plaintiff testified that all revolving-top flat cards work on the same principle, and that any man who could operate one make would be competent to operate any other. They also described the different fastening devices in 1 common use, and the merits of each; stating that an unfastened door might be thrown open more or less by a thick piece of cotton in the lap, or by some foreign substance passing through the card, or by an accumulation of matter in the hinges or on the jamb of the door. There was evidence that the door might have been knocked open by the plaintiff while cleaning the card, but there was no direct evidence as to how it came to be open at the time of the plaintiff's injury. Evidence as to the method by which the doors of carding machines were prevented from coming open in two mills in Suncook (the only ones in which the plaintiff had worked), and as to his duties in those mills, was excluded, subject to exception. The facts relating to other exceptions taken by the plaintiff to the admission and exclusion of evidence, to instructions given the jury, and to the refusal of the court to give instructions requested, sufficiently appear in the opinion.

Martin & Howe and Walter S. Peaslee, for plaintiff.

Samuel C. Eastman and Eastman & Hollis, for defendants.

BINGHAM, J. 1. One of the grounds upon which the plaintiff relied at the trial to establish the defendants' negligence was that the door to the cylinder of the machine upon which he was working' had no fastening device upon it to keep it closed, and might have been thrown open by a thick place in the lap which he was putting through the machine when the accident occurred, and that he did not know of this alleged danger, and was not instructed or warned in respect to it. In answer to this claim, the defendants were permitted to show by their witness Gould that he had made experiments on the same machine since the accident, by putting through it the kind of lap that was being carded when the accident occurred, and that it did not throw the door open. His method was to use a perfect lap, and to put pieces of lap in spots on top of the lap that was being run through the machine and in front of the feed rolls to produce a similar condition, with like effect upon the feed rolls, and the door, to that existing at the time of the accident. The only evidence of the condition of the lap in use when the accident took place was that it was an ordinary lap, but whether it had thick places in it, or differed from the lap used in the experiment, does not appear. The trial judge, when he permitted the testimony in regard to the experiment to be introduced, must have considered that the conditions then made use of were as nearly like those in existence at the time of the accident as could be ascertained from the evidence, and we are of the opinion that he was justified in this conclusion. Colburn v. Groton, 66 N. H. 151, 28 Atl. 95, 22 L. R. A. 763. Where the conditions are similar, it has been uniformly held that proof of this character is legally competent. Whitcher v. Railroad, 70 N. H. 242, 248, 46 Atl. 740; Cook v. New Durham, 64 N. H. 419, 13 Atl. 650; Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55.

2. The plaintiff was a skillful operator upon machines known as "revolving-top flat cards." He was employed by the defendants as an experienced stripper. There is a door on these cards opening upon a revolving cylinder covered with card clothing, which should be kept closed except when the card is stripped or ground. All makes of these cards operate the same, but the devices for fastening the doors vary. Some have doors with weighted ends, but on the defendants' machines the doors were not weighted. There was nothing to keep them closed but their own weight. The plaintiff did not know the alleged danger of the door being thrown open, and was not warned or instructed in any respect by the defendants. He had never operated cards with doors like these, but the defendants did not know this, and the plaintiff did not inform them of it. The defendants were entitled to rely upon the plaintiff's representation that he was a skilled and experienced workman upon revolving-top flat cards, and to understand that he knew and appreciated the dangers liable to arise from the operation of cards that were in common use. If the door to the cylinder of the machine upon which he was set to work was not equipped as cards in common and ordinary use were, he could show that fact by the testimony of witnesses who knew how cards in common use were equipped, but not by proof that he knew of, or had worked upon, two...