Disalets v. Company , 74 N.H. 440 ( 1908 )

The defendant's motions for a nonsuit and for a verdict were properly denied. The plaintiff was properly allowed to introduce evidence tending to show that it required some degree of skill to safely remove the paper that accumulated on the rolls when there was a break, and that observation of how it was done by those who had had experience in the work, or instruction by competent persons, was reasonably necessary before a person of the plaintiff's age, understanding, and mental acuteness would discover the proper and safe way of doing the work. The evidence also authorized the inference that the plaintiff had had no opportunity for such observation, and that he had received no instruction how to proceed. The jury were warranted in finding, also, that he did not in fact know that there was a safer method than the one he adopted, and that the defendant ought to have known that the plaintiff did not know how to do the work in a safe manner and did not understand that he was adopting a specially dangerous method. Upon the assumption that these facts existed, it became the legal duty of the defendant to instruct the plaintiff, whom it directed to do the work of a third hand, how to do the work and to warn him of the danger of doing it in the way he was likely to do it if uninstructed. The fact that the plaintiff knew that if he allowed his hand to be drawn in between the rolls he would suffer injury is not important. The gist of the plaintiff's case is that he did not know and appreciate the peculiar and extra hazard of doing the work in the way he did it. He was directed to do work without instructions which could be done in a reasonably safe way, but which was attended with increased hazard if done in some other way; to discover the safe way skill was required; hence the defendant ought to have instructed him. In this respect the case differs materially from Hicks v. Paper Co. ante, 154, in which it was held that there was no evidence that special skill was required for one to know and appreciate the danger of doing what Hicks attempted to do. And it is there said (p. 157): "If there was special danger in the process not apparent to the observation of an unskilled workman, or if special skill was required to enable one to do the work in safety, the defendants' failure to warn or instruct the plaintiff might be found to be the cause of the injury."

There was no error in the refusal of the court to charge that Caird was acting as the plaintiff's fellow-servant when he told him to take the file to clean the paper from the roll. There was evidence that the use of a file for that purpose, though it was dangerous, was not an uncommon occurrence in the defendant's mill; and the jury might have found from the evidence that its use in that way was known to, and ratified by, the defendant; in effect, that it was furnished by the defendant as a proper tool for that use, so far as the plaintiff was concerned. Upon this view of the evidence, it would be immaterial what relation Caird sustained to the plaintiff when he directed him to use the file. He used the instrument which the defendant provided, or which the defendant permitted to be used in its mill, without knowing it was a dangerous tool to be used for that purpose. Lapelle v. Paper Co., 71 N.H. 346, 349. Under the circumstances, the jury were warranted in finding that the file was a dangerous tool to use for cutting off the paper from the revolving rolls, that the plaintiff did not know or appreciate that fact, and that it was furnished by the defendant for such use. Upon that theory the defendant's liability for its breach of duty is plain.

The defendant's request for an instruction that the jury should not consider the plaintiff's age (eighteen and a half years) upon the question of his appreciation of the risk was properly refused. Whether one understands the perils of his work to such a degree that he is thus enabled, in the exercise of reasonable care for his safety, to protect himself, involves a consideration of his age, intelligence, experience, and special knowledge relating to the situation, as evidentiary facts. To hold as a positive proposition of law that the plaintiff's age had no bearing upon that question would be illogical and unreasonable. As evidence, it may have been of little weight; but it was the province of the jury to determine that question.

Upon the defendant's exceptions to the evidence of the want of a friction-clutch attachment on the machine, and to the remarks of the plaintiff's counsel in argument upon this evidence, in view of the charge to the jury, the members of the court sitting in the case are equally divided, and no decision thereon has been reached. The result under these circumstances is that the ruling of the superior court must stand (State v. Sunapee Dam Co., 72 N.H. 114, 144), and the order must be,

Exceptions overruled: judgment on the verdict.

PEASLEE, J., did not sit: the others concurred.