Lapelle v. Paper Co. , 71 N.H. 346 ( 1902 )

There was sufficient competent testimony tending to prove the negligence alleged to warrant the submission of the question to the jury. The defendants, knowing that the plaintiff was a young and inexperienced man having no knowledge of machinery, assigned him to the performance of a duty, one of the probable incidents of which was the cleaning of pulp from roll 3, without — if the plaintiff's testimony is believed — giving him any information whatever how to perform the service. It is not a matter of common knowledge that the proper way to clean the roll is by throwing a stream of water upon it through a hose; nor would this method be apparent to an ordinary inexperienced person. It would be natural for such a person, who was not aware of the danger incident to that course, to apply force directly to the pulp by the hands or some instrument held in them. There was evidence that the defendants knew that persons who operated the machine were liable to use a stick. The person who represented the defendants in assigning the plaintiff to this work, and upon whom the duty of giving him instructions devolved, if any were necessary (Jaques v. Company,66 N.H. 482), knew this fact, for he had seen his brother clean the roll in that way; and the defendants are chargeable with his knowledge. The testimony relating to this matter, to which the defendants excepted, was relevant to the issue and competent. The fact that the boss, when he saw his brother using the stick, directed him to use water instead and told him it was dangerous to use a stick, did not lessen the force of the circumstance as notice of the necessity for instruction and caution to employees; it did not affect the competency of the testimony. All this evidence tended to prove that it was the duty of the defendants to instruct the plaintiff how to clean the roll and to inform him of the dangers attending the use of a stick the purpose. Bennett v. Warren, 70 N.H. 564. The testimony relating to the question whether they gave him instructions on the subject was conflicting. It was also a question whether the instructions were sufficient which, according to their testimony, they gave. These matters required the submission of the case to the jury.

There was testimony tending to prove that the plaintiff did not know of and appreciate the danger to which he was exposed in using the stick to clean the roll, and was not chargeable with such knowledge and appreciation. He testified that he did not know of the danger; and it cannot be said as a matter of law that it was, or reasonably ought to have been, obvious to a man of his age and knowledge. He had seen another employee use the stick on two occasions with safety. He might reasonably infer that this was the proper way. If his testimony is believed, he knew no other way. It was necessary that he should act quickly, the machine was running, and only a minute and a half intervened between the completion of two sheets of pulp. The law does not charge him with the risk of the perils to which he was subjected unless he was informed of them, or would have learned of them by an exercise of ordinary care. Henderson v. Williams,66 N.H. 405. It is not claimed that he was informed of them, and the testimony relating to the question of his care was not so uniform and convincing in favor of the defendants as to justify the granting their motion. Lintott v. Company, 69 N.H. 628.

Exception overruled.

All concurred.