Opinion
No. 3147.
Decided April 2, 1940.
A master is bound to provide such reasonable rules and regulations as will enable his servants to work in safety.
If ordinary care requires that a warning of dangers arising from the work should from time to time be given to his servants it is the master's duty to provide for that warning.
Where a master omits to establish a rule or to give a warning which would safeguard against accidents likely to result to one servant from the negligence of a fellow-servant, the master is liable for injuries caused by such accidents.
A manufacturer who without rules or warning-regulations permitted his employees to make use of an elevator shaft for the purpose of calling and communicating with each other on the matters of the business was liable for injuries caused to a servant who while thus speaking down the shaft to another servant was struck by the elevator which noiselessly descended without warning.
In such case the servant did not as matter of law assume the risk of the descent of the elevator without noise and unexpectedly.
CASE, for negligence by a servant against his master, to recover damages for personal injuries. Trial by jury. At the close of the plaintiff's evidence the defendant's motion for a nonsuit was granted and the plaintiff excepted. Transferred by Johnston, J.
There was evidence tending to prove the following facts.
The defendant is a corporation engaged in the manufacture of upholstered furniture and mattresses in Manchester, where it occupies a four-story, brick factory building. The plaintiff was employed as an upholsterer and at the time of the accident was eighteen years of age. The manufacturing operations of the defendant were carried on almost entirely upon the second floor of the factory, where the plaintiff was employed, the third floor being used for storage and the first floor for a shipping room. There were stairways connecting all floors on the east and west ends of the building and an elevator located in the middle. There was no means of communication between the various floors except by going up or down the stairs or by calling up or down the elevator shaft. The use of the elevator shaft for this purpose was a general practice of the workmen, who had been instructed to do so by the officers of the corporation, who also engaged in the practice. On the day of the accident the plaintiff was told that one of the workmen on the first floor wished to speak to him through the elevator shaft. He went to the shaft, observed that the elevator was stationary at the third floor, put his head through an opening in the gate and started to speak to the man on the first floor on a matter connected with his work. While the plaintiff was in this position, the elevator descended noiselessly and without warning, and struck him on the head, causing the injuries for which the damages are sought in this action. No rules or regulations to govern the practice of talking through the elevator shaft or the operation of the elevator had been promulgated by the defendant and no provision, mechanical or otherwise, for a warning of its descent had been made.
Other facts are stated in the opinion.
Sullivan Dolan (Mr. Dolan orally), for the plaintiff.
Sheehan Phinney (Mr. Phinney orally), for the defendant.
The defendant does not venture to deny that it was findably at fault, nor could such a suggestion be seriously entertained in view of the rules that, (1) "The master is bound . . . to provide such reasonable rules and regulations as will enable the servants to do the work in safety," and (2) "If ordinary care requires that a warning of dangers arising from the work should from time to time be given to his servants as the work progresses, it is the master's duty to provide for such a warning." McLaine v. Company, 71 N.H. 294, 297; Sirois v. Henry, 73 N.H. 148, 151. In this situation, the argument of the defendant that the plaintiff cannot recover because the accident resulted from the negligence of a fellow-servant is untenable. If it were conceded that the workman who operated the elevator at the time of the accident was at fault in failing to discover the presence of the plaintiff and to warn him that the elevator was about to be started, it might nevertheless be found that the accident resulted from the negligence of the defendant in permitting the elevator shaft to be used as a means of communication without establishing a reasonable system of rules and regulations to minimize the dangers inherent in such use.
The answer to the argument that the plaintiff was guilty of contributory negligence as a matter of law is to be found in the rule that contributory negligence is usually negatived by evidence that the servant acted under a direct order (4 Labatt, Master Servant, (2d ed.), s. 1363) coupled with the fact that the plaintiff was a minor whose appreciation of the various factors of danger which his conduct involved was not conclusively established, as hereinafter indicated.
The defendant appears to rely chiefly upon the doctrine of assumption of risk to sustain the order of nonsuit. It is argued that the plaintiff "knew the facts and physical conditions and reasonable men could not find that he did not appreciate the danger," citing Cronin v. Company, 75 N.H. 319. The plaintiff, it is true, testified unequivocally that he knew it was dangerous to thrust his head into the elevator well "if the elevator was coming down." Such testimony is insufficient, however, to charge him, as a matter of law, with appreciation of the risk from which his injury, in fact, resulted. He testified repeatedly that before undertaking to communicate with the man on the first floor, he looked up and saw that the elevator was stationary at the third floor and it might be found that the accident resulted because the elevator was started without warning and descended so noiselessly that its approach was not discoverable by the plaintiff in the exercise of due care until too late for him to avoid contact with it. The record does not compel the conclusion that the plaintiff appreciated the composite risk of being caught as a result of the unwarned starting of the elevator, plus its noiseless operation, while it might be found, on the other hand, that the establishment of a suitable system of communication in the factory or provision for some warning of the descent of the elevator would have prevented such an occurrence.
As a result of the foregoing conclusions, it follows that there must be a
New trial.
All concurred.