Turner v. Cocheco Mfg. Co.

• Decision Date: 04 October 1910
• Citation: 75 N.H. 521,77 A. 999
• Parties: TURNER v. COCHECO MFG. CO.
• Court: New Hampshire Supreme Court

77 A. 999

75 N.H. 521

TURNER

v. COCHECO MFG. CO.

Supreme Court of New Hampshire. Strafford.

Oct. 4, 1910.

[Copyrighted material omitted.]

Transferred from Superior Court, Strafford County; Wallace, Judge.

Action by William Turner against the Cocheco Manufacturing Company. There was a verdict for plaintiff, and the cause was transferred on exceptions to the admission of evidence, remarks of counsel, and to the denial of a motion for a directed verdict. Overruled.

Page, Bartlett & Mitchell and Pierce ft Galloway, for plaintiff.

Rurnham, Brown, Jones it Warren and Edward C. Stone, for defendants.

YOUNG, J. 1. A fire which originated in a belt box on the third floor of the defendants' mill entirely destroyed the fourth and fifth floors. The plaintiff, who worked on the fifth floor, slipped while attempting to escape from the mill on a rope, fell to the ground, and received the injuries complained of. The belt box in which the fire originated extended from the casing of the flywheel up through, and to a point six feet above, the third floor. The cotton lint which collects in all parts of the mill had not been taken out of this box for a long time before the fire, and so great a quantity had collected in it and in the casing of the flywheel that it was impossible after the fire started to control it with the appliances the defendants provided for that purpose. There was evidence justifying the conclusion that such a belt as this one was, running under the conditions disclosed, would generate static electricity and emit sparks sufficient to set the lint on fire; and it was also competent for the jury to find that the ordinary man would not have permitted the lint to collect to such an extent in such a belt box, that the defendants did, and that the plaintiff did not, know it had collected or of the danger of fire from electric sparks, and that they failed to notify him of the situation he was in. Consequently it can be found that they were in fault, and that the plaintiff did not assume the risk incident to an uncontrollable fire in the mill caused in this manner. Goodale v. York, 74 N. H. 454, 69 Atl. 525.

2. It can be found that the plaintiff was free from fault in attempting to leave the mill in the way he did, even if he knew there was a fire escape on the ell. The room was dark and full of smoke. He was excited and saw other persons escaping from the mill in the way he attempted to escape. It cannot be said that in that situation the ordinary man would not have done what he did.

3. The court instructed the jury to disregard that part of the plaintiff's opening statement of which the defendants complain, and also the remark of the court to which au exception was taken. That disposes of these exceptions; for it must be assumed, in the absence of evidence to the contrary, that the jury obeyed instructions. Hoxie v. Walker, 75 N. H. 308, 74 Atl. 183.

4. When the attention of the plaintiff's counsel was called to the fact that he was criticising Dr. Morgan, he retracted all of the statement objected to, except that "Dr. Morgan apparently changed his base suddenly." Although there was no direct evidence to that effect, it does not appear to have been the assertion by counsel of a fact as of his own knowledge, but rather an inference or conclusion drawn in argument from a view of the evidence and the appearance of the witness as it laid in the counsel's mind, and therefore the statement did not amount to reversible error. Conn. River Power Co. v. Dickinson, 75 N. H. 353, 358, 74 Atl. 585.

5. The statement of counsel in argument that Dr. Tolman and Dr. Sullivan were retained by the defendants is not objectionable, for it was based on evidence that they were in the pay of the defendants, and that, instead of attempting to lay all the facts before the jury, they were attempting to belittle the plaintiff's injuries. If they were, it was not unfair to characterize them as being retained by the defendants. In other words, it cannot be said as a matter of law that this part of the argument was either unfair or without evidence to sustain it.

6. If counsel's statement that the defendants had used all their ingenuity to prevent the plaintiff from showing the cause of the lire was unwarranted, it furnishes no reason for disturbing the verdict, for he withdrew all that was objectionable when he said: "I want to withdraw everything I have said with reference to that except this, that in so far as you have observed the appearance of the witnesses that they have introduced, both experts and all, the conduct and appearance of Mr. Pish as a witness on the stand and what he said, the nature of his testimony, and the conduct and appearance of those witnesses whom they control, I want to call your attention to these things, and ask you to consider whether they are merely trying to show you all the facts in this case, or whether they are trying to conceal some of the facts."

7. The remarks of the plaintiff's counsel about being bothered by the defendants' numerous exceptions do not appear to have been prejudicial. If they were of that character, the error was correctible by the trial justice. Hoxie v. Walker, supra. Nor was the remark that the defendants offered no evidence that there was no such book as one of the plaintiff's witnesses said he had read on the subject of electricity untruthful or improper as a matter of law.

8. Counsel's statement in respect to the measure of damages was erroneous, but he was told by the court in the presence of the jury that it was not the law, and instructed to withdraw...