Sevigny v. J. Spaulding & Sons Co.

• Decision Date: 03 June 1924
• Docket Number: No. 1958.,1958.
• Citation: 125 A. 262
• Parties: SEVIGNY v. J. SPAULDING & SONS CO.
• Court: New Hampshire Supreme Court

125 A. 262

SEVIGNY

v. J. SPAULDING & SONS CO.

No. 1958.

Supreme Court of New Hampshire. Strafford.

June 3, 1924.

Exceptions from Superior Court, Strafford County; Allen, Judge.

Action by Vena Sevigny against J. Spaulding & Sons Company. From an order of nonsuit, plaintiff brings an exception. Exception sustained.

Case for negligence. The action is at common law, and brought by a servant to recover for injuries received while working upon an unguarded machine. Three days before the accident she complained of the lack of a guard, and the foreman promised to supply one. Other facts are stated in the opinion. At the close of the plaintiff's evidence a nonsuit was ordered, subject to exception.

Demond, Woodworth, Sulloway & Rogers and Wm. N. Rogers, all of Concord, for plaintiff.

Alvin J. Lucier, of Nashua, Felker & Gunnison, of Rochester, and George T. Hughes, of Dover, for defendant.

PEASLEE, J. The promise of a master to remedy defects or deficiencies in his instrumentalities relieves the servant of his implied assumption of the risk while he remains at work on the strength of the promise. Various reasons for this rule have been assigned by courts; but, while there is this difference of opinion as to why there is such a rule, there is no dissent from the proposition that it is a part of the law. 4 Lab. M. & S. § 1348. There is no case in this state wherein a recovery upon this ground has been upheld, but the principle has been recognized without question. Bodwell v. Mfg. Co., 70 N. H. 390, 47 Atl. 013; Roy v. Hodge, 74 N. H. 190, 66 Atl. 123.

In a few jurisdictions a distinction has been made between a promise to repair a defect in an essential part of a machine and one to supply an added device, like a safety appliance. There appears to be no sound reason for such a conclusion. It is as much the master's duty to furnish reasonable safeguards as to supply a machine that will do the work without breaking down and so causing injury. The promise to replace a cracked saw stands no differently than one to supply a guard. The servant's assumption of risk applies equally to each situation, and a new contract on that subject should be treated alike in both instances.

In the present case the defendant concedes the existence and applicability of the rule, but claims that the evidence shows that the accident in question was caused by the plaintiff's failure to use reasonable care in the way she went about her work upon the unguarded machine.

The plaintiff was a skilled operator of the machine, which was known as a tandem skiver. The defect complained of was the lack of a guard over exposed shafts and gearing. She had occasion to tighten some screws near the moving shafting, and while doing this her screw driver slipped, letting her hand Into the unguarded machinery and causing the injury. She could have stopped the machine before tightening the screws. She was familiar with the operation, and had occasion to perform it frequently for other purposes. She testified, upon cross-examination, that she did not think about doing so on this occasion. On redirect examination she testified to certain dangers involved in stopping the machine, and to the practice in the shop to do what she was doing when unguarded machines were in motion.

It is argued on behalf of the plaintiff that this explanation satisfactorily accounts for her conduct, and made the question of her care one for the jury. She did not testify that these considerations led her to refrain from stopping the machine, nor that she would not have done as she did if she had considered the matter. The most that can be said is that, if he had thought, she might still have concluded that the proper course of action was the one she in fact took. The question thus presented is whether acts done without thought must be found to be negligent, when thought might or might not have led to different conduct.

While the standard of conduct is external (...