Opinion
No. 3284.
Decided December 2, 1941.
Under P. L., c. 328, s. 13 the defendant has the burden of proving contributory negligence; and in the absence of evidence, the mere possibility which exists in every case that the plaintiff may have been guilty of negligence cannot be made the basis of a ruling against him.
A master is no less responsible to his workmen for personal injuries occasioned by a defective system of using machinery than for injuries caused by a defect in the machinery itself.
Assumption of the risk is not a defence [defense] where a workman though he knew that if while oiling a machine he allowed his hand to be caught in certain gears, he would suffer injury, but did not know and appreciate the peculiar and extra hazard of doing the work in the way he was instructed to do it.
Where a verdict awarded $4,640.87 for pain and suffering, there being no permanent loss of earning capacity, and the plaintiff had suffered the loss of portions of the thumb, index and middle fingers, the trial court rightly ordered a remittitur of $2,000 or a new trial.
CASE, by a servant against his master to recover for personal injuries alleged to be due to the master's negligence. Trial by jury and verdict for the plaintiff in the sum of $5000. The defendant seasonably moved for a nonsuit and a directed verdict. These motions were denied and the defendant excepted. After verdict the defendant moved to set it aside upon the ground that "the verdict is excessive." This motion was granted and the court ordered a remittitur of $2000 or a new trial. To this order the plaintiff excepted.
The defendant had accepted the provisions of the Employers' Liability and Workmen's Compensation Act, P. L., c. 178, and all amendments thereto. Transferred by Burque, C. J.
There was evidence from which the following facts might be found. The plaintiff was employed by the defendant as a card grinder, but about a month before the accident he commenced to do greasing and oiling about the mill, and at the time of the accident was engaged in greasing the so-called compound gears on a machine known as a frame. These compound gears, as shown by a photograph furnished by the defendant, consisted of four large gears which "go four ways like a cross." In the center of this assembly was located a grease cup on which the plaintiff was working at the time of his injury. The whole assembly, including the grease cup, revolves in a horizontal plane. The plaintiff had received instructions as to how to do the work and testified as follows: "Will you tell the jury what Mr. Desruisseaux told you as to how to grease these gears? A. He told me to stop the machine, lift the cover, take the grease cup out, fill it up with grease, return it to its place and turn it down; then start the machine and when it went around, wait until it came to the top, and as it did come to the top turn it down once more, and that was the procedure. Q. Did he tell you or show you how many times you would have to turn the grease cup down? A. He told me to turn the cup until the grease came to the end of the shafts, both ends of the shafts." This was admittedly an improper method of doing the work. Desruisseaux testified as follows: "Q. Now will you explain to the jury the proper way of greasing this machine, the proper way to do it? A. The proper way is to stop the machine and tighten up the grease; that's the proper way. Q. Tighten up the grease cup, you mean? A. Yes. Q. Then what do you do? A. Start up the machine. When it comes to the top you stop it again and tighten it up." While doing the work as he had been instructed to do, the plaintiff's left hand was caught in the gears and he suffered the loss of portions of the thumb, index and middle fingers. Other facts are stated in the opinion.
Robert J. Doyle (by brief and orally), for the plaintiff.
Ivory C. Eaton (by brief and orally), for the defendant.
The first argument of the defendant in support of his exception to the denial of a nonsuit is that the cause of the plaintiff's injury is conjectural. "The jury had to guess whether the accident was caused because of the instructions which the plaintiff claimed to have received, or, because he was negligent in putting his hands into the gears." This position is not open to the defendant in view of P. L, c. 328, s. 13, which imposes on the defendant the burden of proving contributory negligence. If the plaintiff was negligent, the defendant was bound to prove it. In the absence of evidence, the mere possibility, which exists in every case, that the plaintiff may have been guilty of negligence, cannot be made the basis of a ruling against him.
The second position of the defendant is that the plaintiff assumed the risk of being hurt in the manner indicated and he relies upon the plaintiff's admission, repeated in varying forms, to this effect: "Yes, I knew if my hand got caught in the gears I would get hurt." It is well settled law that a master is bound to see that the instrumentalities which he furnishes are properly used. He is "no less responsible to his workmen for personal injuries occasioned by a defective system of using machinery than for injuries caused by a defect in the machinery itself." 3 Labatt, Master Servant, s. 1110, quoting Smith v. Baker [1891] A. C. 325, 363; McLaine v. Company, 71 N.H. 294; Sirois v. Henry, 73 N.H. 148; Disalets v. Company, 74 N.H. 440; Graham v. Weber, 79 N.H. 393; and "if there is any evidence which tends to show that the system of work adopted by the defendant was an improper one, it is error to dismiss the action." Labatt, Master Servant, supra. In such a situation the principle of assumption of risk is not usually available as a defence, [defense] and it cannot be invoked here. "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." Disalets v. Company, supra, 443.
The order of the Presiding Justice reducing the amount of the verdict to $3000 appears to be proper. Plaintiff's hospital bills and lost wages amounted to $359.13. This indicates that the jury must have allowed $4,640.87 for pain and suffering and permanent injury. The plaintiff testified that he was earning at the time of his injury $14.28 per week but that upon July 10, 1939, three months and ten days after the accident, he went to work in his present position at a wage of $16.95 per week and that since that time his wages have been increased to $21.40 per week. Under these circumstances it is evident that there could be no allowance for permanent loss of earning capacity. With this element out of the case, an allowance of $4,640.87 for pain and suffering was clearly excessive.
Exceptions of both parties overruled.
ALLEN, C. J., was absent; BURQUE, J., did not sit: the others concurred.