Weeks v. Cushman-Rankin Co.

• Decision Date: 05 October 1915
• Citation: 95 A. 658
• Parties: WEEKS v. CUSHMAN-RANKIN CO.
• Court: New Hampshire Supreme Court

95 A. 658

WEEKS

v. CUSHMAN-RANKIN CO.

Supreme Court of New Hampshire. Grafton.

Oct. 5, 1915.

Transferred from Superior Court, Grafton County.

Action by Isaac S. Weeks under the Employers' Liability Act against the Cushman-Rankin Company. Case transferred from the trial term on defendants' exceptions. Exceptions overruled.

Case, for negligence, brought under chapter 163, Laws of 1011. Trial by jury, and verdict for the plaintiff. At the close of the plaintiff's evidence the defendants moved for a nonsuit on the ground that the plaintiff was not in the exercise of ordinary care at the time of the accident, and at the close of all the evidence they moved that a verdict be directed in their favor. Both motions were denied pro forma, and the defendants excepted. Other exceptions taken by the defendants were not urged in brief or oral argument.

The plaintiff was injured on July 20, 1013, and had then been employed for 0 years as fireman of the steam boiler in the defendants' leather board mill in Bath. A short time before his injury the defendants removed the manhole and handhole covers from the boiler for the purpose of cleaning it; and during his absence their foreman replaced the covers and turned up the nuts on the crow's-feet holding the covers in place, as far as it was possible to do so without steam pressure in the boiler to warm the gaskets. The plaintiff's evidence tended to prove that the foreman did not properly replace the manhole cover and the gasket or packing which was placed between the edge of the cover and the inside surface of the boiler. For about a week the defendants had been out of the asbestos gaskets which they ordinarily used, and on this occasion the foreman made a gasket from rubber belting. The asbestos gasket was one-eighth of an inch thick, while that made from the belting was three-eighths of an inch thick. The plaintiff's evidence tended to prove that the rubber gasket was not a proper packing. After tightening the nuts as much as possible without warming the packing, the foreman called one Drury to take charge of finishing that work after the packing had been warmed. Drury was a millwright of 25 years' experience, and had been employed to make repairs in the mill for 9 years, being called nearly every day for that purpose. The plaintiff had known him for 23 years. When the plaintiff came on duty a fire had been started under the boiler, but there was no steam pressure. Drury directed the plaintiff to watch his steam and to tighten the nuts on the handhole cover on top of the boiler, and also on the manhole cover in front, when there was about 5 pounds pressure. While the steam was making Drury went to supper. Upon his return, and just as he reached the boiler house, he heard the safety valve on top of the boiler blow off, and saw the plaintiff coming down from the top of the boiler, where he had finished tightening the nut on the handhole cover. Drury then told the plaintiff to tighten the nuts on the manhole cover, which the plaintiff started to do, while Drury stood beneath him holding the crow's-foot in place. The plaintiff tightened the nuts in just the way and manner that Drury directed him. The plaintiff had tightened the nut on the left-hand side of the cover, when the packing on that side was blown out, and the plaintiff was burned and scalded by escaping steam and water.

There was a steam gauge located at the right of the boiler in front and eight or nine feet above the floor, which could be seen by one standing in front of the boiler if he looked to the right. There was no evidence as to the steam pressure at the time of the accident. The safety valve was set to blow off at 115 pounds, and it blew off when Drury returned from supper, but the accident did not happen until 30 minutes later. In the meantime the smoke chamber doors had been open, which tends to lessen the steam pressure. The defendants' foreman testified that the plaintiff had assisted him in packing the manhole cover and tightening the nuts on the crow's-feet many times; that he had told the plaintiff not to tighten the nuts when there was more than 8 to 10 pounds pressure on the...