True v. Meredith Creamery

• Decision Date: 05 May 1903
• Citation: 72 N.H. 154,55 A. 893
• Parties: TRUE v. MEREDITH CREAMERY.
• Court: New Hampshire Supreme Court

55 A. 893

72 N.H. 154

TRUE

v. MEREDITH CREAMERY.

Supreme Court of New Hampshire. Belknap.

May 5, 1903.

Exceptions from Superior Court.

Action by John N. True against the Meredith Creamery. Verdict for plaintiff. Defendant excepts. Exceptions overruled.

The plaintiff is a farmer. For two or three years before the injury complained of he had carried milk to the creamery of the defendant, where it was weighed on scales situated about six feet from the outside door opening into the main room, and about three feet from the nearest point of a belt running over a pulley and operating the separator. After the milk was weighed, it was put into the separator, which was made to revolve about 4,000 times per minute, in order to separate the cream. The separated milk was conveyed into tubs set to receive it in an adjoining room, where it was again weighed, and where the plaintiff and other patrons in turn received it in their cans to take home. The patrons were accustomed to wait about the premises until the cream was separated, sometimes but a short time and sometimes more than an hour, according to the time consumed by the process. The belt referred to was about four inches wide, and was parallel with the floor and a few feet above it. The top of the belt from the separator to the pulley was covered. The plaintiff testified that upon the morning of the accident he took his milk to the creamery. After it was weighed and poured into the separator, he carried the empty cans into the back room, to have them filled with milk to take home. He then returned to the front room by the same route; that is, between the scales and the belt. Upon his return one Hersey asked if he could be weighed on the scales, and the plaintiff replied that he could. As Hersey stepped upon the scales, the plaintiff told a young man standing by that he might do the weighing, and, just as he spoke the belt broke, one end striking the plaintiff in the eye, and causing the injury complained of. At the time of the accident the plaintiff was watching the scale beam, and he described his location as "between the young man and the scales, next to the belt, right where they pass back and forth." There was nothing to prevent the belt from flying as it did after it parted. The plaintiff's attention had never been called to the danger he encountered, nor had he been warned against being between the scales and the pulley. Some time within a year prior to the accident the same belt had parted while operating the separator. A witness for the plaintiff testified that it was a "common thing" for belts of that size to come apart when they are mended by making new holes and putting in new hooks. At the close of the plaintiff's evidence the defendant's motion for a nonsuit was denied, subject to exception.

Shannon & Young, for plaintiff.

Jewell, Owen & Veazey, for defendant.

WALKER, J. The plaintiff's contention is that the proximate cause of his injury was the negligence of the defendant in using in its business a defective belt, or one so liable to break that under the circumstances the defendant, exercising reasonable care and prudence, ought to have used other precautions than it did use to protect its patrons from injuries reasonably to be apprehended therefrom. If the plaintiff was in the place he occupied at the time of the accident upon the invitation, express or implied, of the defendant, it was the defendant's duty to use ordinary care to protect him from dangers which its agents knew might be apprehended from the operation of the belt, and of which he had little or no knowledge. "The occupant of land is bound to use ordinary care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his Invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. The extent, however, of his obligation is to use ordinary care and prudence to keep his premises in such condition that visitors may not be unnecessarily or unreasonably exposed to danger." 2 Shearm. & Red. Neg. § 704; Poll. Torts, 490; Clark v. Manchester, 62 N. H. 577, 579; Frost v. Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396; Campbell v. Sugar Co., 62 Me. 552, 16 Am. Rep. 503; Sweeny v. Railroad, 10...