Shurkus v. Gate City Foundry Co.

• Decision Date: 03 May 1927
• Citation: 138 A. 302
• Parties: SHURKUS v. GATE CITY FOUNDRY CO.
• Court: New Hampshire Supreme Court

138 A. 302

SHURKUS

v. GATE CITY FOUNDRY CO.

Supreme Court of New Hampshire, Hillsborough.

May 3, 1927.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Action by Anthony Shurkus against the Gate City Foundry Company. Verdict for plaintiff. Transferred on defendant's exceptions to denial for nonsuit and directed verdict. Judgment for defendant.

Case, for personal injuries by an employee. Trial by jury and verdict for the plaintiff. Transferred upon the defendant's exceptions to the denial of its motions for a nonsuit and for a directed verdict.

The plaintiff had been employed five or six years as a clipper and helper in foundries, doing all kinds of work. He had been in the defendant's employ for six months, during which time his duties had included the handling of hot metal in transit from the furnace to the forms. At the time of the accident he was in charge of a "bull ladle," dispensing molten metal therefrom to the moulders. The ladle rested upon iron boxes. It was held in position and operated by means of two handles, by rotating which it could be tipped, so that its contents would run into hand ladles set on the ground. As it was placed, the moulders presented their ladles on its northerly side. The plaintiff, facing easterly, was standing between the handles of the bull ladle in a stooping posture, with his right foot extended slightly back of his left. This was the customary position of an operator. It was necessary to keep hold of the handles at all times to operate the ladle and to keep it from tipping.

The handles of the hand ladles were three and a half feet long, extending diagonally upward from the bowl. When lifting a ladle of metal the moulder supports the weight with his left hand with which he grasps the handle down near the bowl, and steadies the load with his right hand at the upper end. In transporting the metal he customarily walks forward carrying the bowl of the ladle to his left, and slightly behind him, with his right hand on the elevated end of the handle in front of him.

Directly south of the bull ladle was an iron stove designed to keep the metal hot while in process of distribution. Two and a half feet westerly of the stove were two posts, touching each other, supporting the central portion of the roof of the building. A moulder was directed by the boss to fill a mould situated southerly of the stove. After receiving his metal, contrary to the custom, he kept his ladle in front of him and stepped backward around and to the rear of the plaintiff past the supporting posts. While thus walking backward he struck his right elbow on one of the posts, spilling molten iron into the plaintiff's right shoe, producing the injury for which the suit is brought. Other facts appear in the opinion.

Doyle & Doyle and Paul J. Doyle, all of Nashua, for plaintiff.

Lucier & Lucier, T. F. O'Connor, and Alvin A. Lucier, all of Nashua, for defendant.

SNOW, J. The defendant had accepted the provisions of Laws 1911, c. 163 (P. L. c. 178). The plaintiff has waived the provisions for his benefit and elected to sue at common law. Id. § 4; Bjork v. United States Bobbin & Shuttle Co., 79 N. H. 402, 404, 111 A. 284, 533. He is, therefore, subject to the defense of the assumption of risk (Cassidy v. Atlantic Corporation, 79 N. H. 427, 429, 111 A. 147), including the risk of injuries caused by the negligence of fellow servants (Hodges v. J. Spaulding & Sons Co., 81 N. H. 101, 122 A. 794). The plaintiff assumed such risks as he knew of and appreciated, or which would have been disclosed to him by the exercise of due care (Cassidy v. Atlantic Corporation, supra; Olgiati v. New England Box Co., 80 N. H. 399, 402, 117 A. 735), and has the burden of proving that the injury arose from a risk which he did not assume (Zajac v. Amoskeag Mfg. Co., 81 N. H. 257, 261, 124 A. 792).

The acts of negligence relied upon are (1) faulty construction of the premises in the narrowness of the space between the stove and the post, which was customarily used as a passageway by the moulders when carrying metal to and from the bull ladle, and (2) failure to maintain sufficient lights. It is conceded that the plaintiff was aware of the general danger attending the handling of molten metal, and his knowledge of both of the alleged defects affirmatively appears. But the plaintiff contends that the defense of the assumption of risk arising from the inadequacy of the lights was suspended by reason of a complaint thereof to the master and its promise to repair, and that his injury was a result of a combination of the faulty lights, the narrow passage, and the act of a fellow servant, the danger of which combination he did not appreciate.

The foundry was equipped with five or six windows upon the north, three upon the east, one or two upon the west, and with three skylights. The natural light was normally supplemented, when needed, by six or seven electric ceiling lights, and by wall lights over the moulders' forms. The accident occurred at 4:15 p. m., October 22d which was a cloudy day. The plaintiffs evidence tended to show that two of the skylights were partially obstructed, and that four of the six ceiling lights were out of commission or not lit. The alleged complaint was of the defective ceiling lights. The plaintiff testified:

"I spoke [to the boss] twice, once about two or three weeks before the accident, and the second time two days before the accident. He say, 'You stay I give you more money.'

"Q. * * * You spoke to him about them Friday? A. Yes, sir.

"Q. What did he say? A. I say, 'Ain't you going to fix the lights so I can see?' He say: 'I'm busy; take care of them later.'"

The accident occurred on the following Monday. The plaintiff further testified that he supposed the boss was going to fix them,...