Savage v. Otis Elevator Co.

• Decision Date: 29 January 1947
• Citation: 51 A.2d 123
• Parties: SAVAGE v. OTIS ELEVATOR CO.
• Court: New Jersey Court of Common Pleas

51 A.2d 123

SAVAGE

v.OTIS ELEVATOR CO.

Court of Common Pleas of New Jersey, Hudson County.

Jan. 29, 1947.

Proceeding under the Workmen's Compensation Act on the claim of Matthew J. Savage, by his next friend, Josephine Alexander, against Otis Elevator Company for compensation for injury to petitioner's ear as the result of a blast from an air hose. From an award of compensation to petitioner, employer appeals.

Affirmed.

Albert E. Schober, of Newark, for respondent-appellant.

O'Brien, Brett & O'Brien, of Newark, for petitioner-appellee.

DREWEN, Judge.

Petitioner operated a milling machine in appellant's Harrison plant. The working of the machine was such as to cause the accumulation around its base of metal particles, thrown off in quantities sufficient to require their disposal from time to time. This was effected by means of compressed air, released from a hose, which blew the accumulation through an opening into a lower chamber designed to receive it. Petitioner's machine was one of a number in the department, each having its own operator and each equipped with a compressed air hose for use in the manner described. It was not the duty of the operator to remove the accumulation; that function was performed at all machines by one especially assigned thereto, in this instance one Brown. Each hose was equipped with a nozzle and a ‘button.’ The pressing of the button released through the nozzle a column of air of 90 pounds pressure. The proof shows that while in the hands of Brown, either during the performance of his assigned duty at petitioner's machine or otherwise, the hose was so manipulated by Brown that the air pressure was discharged near enough to the side of petitioner's head to cause a puncture of the eardrum, with ensuing chronic discharge from the ear.

The accident is described in the claim petition as follows: ‘Petitioner was working at his machine when a fellow employee using an air hose accidentally blew it in petitioner's face and caused injury to his left ear.’ Though the allegations of the claim petition are thus grounded on accident, petitioner's evidence presents a case of horseplay. And the pleaded defense is that ‘Any accident suffered by petitioner was due to horseplay and did not arise out of and in the course of his employment.’

Petitioner in his testimony seems strangely uncertain whether his version of the happening should be horseplay or accident. He gives it both ways. He contradicts himself and quibbles; but from what he told the nurse, the doctor, the investigator and others immediately and shortly following the occurrence, taken together with all attendant circumstances, there is no doubt in the mind of this court that horseplay it was. It may be that petitioner's equivocation was due to a consciousness of having participated in the foolery himself, but there is nothing to show that he did. The Deputy Commissioner likewise decided that the case presented was one of horseplay; and after a recital of proofs relating to the question of a foreman's knowledge of the prior misuse of the hose, he declares in his finding that ‘under these facts our cases have held that an injury received, even though in horseplay is compensable.’ It is our opinion that the proofs disclose no evidence of such prior knowledge attributable to respondent; and in the view we take of the case it is of no consequence whether it does or not.

The decisions in this state develop no final principle for application to this case. We must not be carried away by the term ‘horseplay,’ nor by assumptions of a rule that in cases bearing that label a showing is required that the employer was aware of conditions conducive to accidents like that which did result and that he failed to suppress them. The briefs argue this point with much earnestness, but upon texts gleaned entirely from obiter dicta. As indicated, there is no clear authority on the subject in this state. We are not unmindful of the decision of the Court of Errors and Appeals in Hulley v. Moosbrugger, 88 N.J.L. 161, 95 A. 1007, L.R.A.1916C, 1203, and of the very recent decision of the Supreme Court in Budrevie v. Wright Aeronautical Corporation, 135 N.J.L. 46, 50 A.2d 147, but those cases deal with horseplay in a thoroughly different sense. Here we have a dangerous instrumentality which is a feature of the working environment. It is attached to the machine at which the employee works. It is of such a nature that but slight deviation from its most careful use is enough to create peril for any one nearby. The margin between safe and unsafe is so narrow that the potentiality for harm may be described as ever imminent. What this potentiality is should require no better illustration than the facts before us. There are cases in other jurisdictions that deal with the sportive use of an air hose upon a more drolly selected orifice, with resultant death to the jester's victim. Why in a case like this should the petitioner be required to show that the employer had knowledge of the previous misuse of the dangerous device? How many antecedent inflictions of harm must there be? The only effect of such previous knowledge is to inform the employer of a condition that calls for correction. But the employer here knew all there was to know about the evil possibilities of the air hose. The testimony places that beyond dispute. A foreman and an assistant foreman called by respondent both say that the strictest orders were given to all employees having access to an air hose against the misuse thereof, together with the warning that any resort to the hose in foolery or for any other purpose than its legitimate and intended one would result in the offender's immediate discharge. The safety-man in the department where petitioner worked testified that he ‘knew that the careless use of it (the hose) might be dangerous to anybody in the neighborhood.’ In a word, common sense rejects the applicability of the rule of employer's prior knowledge to the facts in this record.

Consider the genuine difference between knocking a hat from a fellow-worker's head (Hulley v. Moosbrugger, supra), or the jostling about in a freight elevator while returning from lunch (Budrevice v. Wright, supra), on the one hand, and the discharge upon a fellow-worker of a powerful airgun under circumstances like those in the present case, or the tossing upon a welding-flame of inflammable liquid used by workmen in the plant (Staubach v. Cities Service Oil Co., 126 N.J.L. 479, 19 A.2d 882), on the other hand. We think there is a definite principle inherent in this distinction. In the first category injury is the luckless and unforeseeable result of conduct having relation to nothing in the work or the work's conditioning, while in the second category natural forces ingredient in the worker's equipment or environment, or both, are recklessly loosed from control and made free to pursue a devastating course they are...