Opinion
Decided March 2, 1937.
In case for personal injuries by an employee against an employer who has accepted the compensation act, recovery will be permitted if the injury was due to the effort of the plaintiff to make defective machinery operate by resorting to a device used by the employer, provided the plaintiff was not guilty of contributory negligence. The mere fact that a workman employed to operate the windlass in a sawmill was paid by the customer whose logs were being sawed does not justify a finding that this apparatus was not under the control of the mill owner. Evidence was properly admitted of the custom of workmen in a mill to render assistance to one another whenever an opportunity occurred.
CASE, for negligence, to recover for personal injuries sustained by the plaintiff while employed by the defendant in his saw mill. Trial by jury with a verdict for the plaintiff. Transferred by Sawyer, C. J. upon the defendant's exceptions to the admission of evidence, to the denial of his motions for a nonsuit and a directed verdict, to the denial of his requests for instructions and to the charge.
At the time of the accident there were eight persons employed in and about the mill, and no exception was taken to the court's instruction that the liability of the defendant was governed by the provisions of the employers' liability and workmen's compensation act. P.L., c. 178, ss. 2, 3.
There was evidence from which the following facts might be found.
The accident occurred upon May 7, 1934. The plaintiff was employed to take away slabs from the log saw and cut them up on a small saw. He was injured on a friction drum or windlass, so-called, which was used to pull the logs out of a pond adjacent to the mill. The essential parts of this windlass were two wheels of unequal size. The smaller one, operated by the power of the mill, was in motion at all times. The other wheel was attached to a drum upon which was wound a rope to which the logs were attached. When the windlass was in operation, the large wheel was lowered by means of a lever which brought it in contact with the smaller wheel from which power was transmitted by friction to turn the drum and reel in the rope with the logs attached. It was customary in the defendant's mill for a workman, when not engaged on his particular job, to help the other men in their work.
After dinner on the day of the accident, there were no logs ready to be sawed on the runway of the mill. The plaintiff, therefore, undertook to assist one Robie, whose job it was "to get the logs from the pond up in front of the mill and roll them in on the skid so they could be sawed." The rope of the windlass having been attached to a load of logs, the lever of the windlass was operated by another workman named Kelley, but the wheels slipped and "the thing refused to pull . . . . The big wheel stopped and the little one kept going." The plaintiff, therefore, threw a piece of bark between the two wheels and "she started for a second." He then tried to throw another piece of bark between the wheels, when the glove on his left hand was caught and his hand was "rolled right through the rollers." The windlass in question was as much as thirty years old; the leather covering of the small wheel had not been renewed since 1913; the wheels frequently slipped and upon such occasions the defendant's employees were accustomed to throw bark, paper or rosin between them to create more friction. It might be found that the defendant knew of this custom and had himself thrown "paper and stuff" between the wheels.
Other facts are stated in the opinion.
Batchelder Wheeler, for the plaintiff.
George R. Scammon, for the defendant, furnished no brief.
The evidence of the custom of the men in the defendant's mill to assist one another whenever an opportunity was presented, was clearly admissible. Minot v. Railroad, 73 N.H. 317, 320; Haywood v. Railroad, 79 N.H. 520.
There was evidence to sustain the conclusion that the plaintiff was injured while endeavoring to cope with a situation caused by "a defect or insufficiency" in the condition of the defendant's machinery by a method known to and sanctioned by him. If in so doing he acted within the scope of his employment and was not shown to be guilty of contributory negligence, his right to recover under the statute would be clear. P.L., c. 178, ss. 2, 3. These two issues were properly submitted to the jury. The evidence of the custom prevailing in the defendant's mill above referred to, justified a finding in favor of the plaintiff upon the first issue. The burden of proof upon the second issue rested upon the defendant and the evidence of the way in which the accident happened did not compel the conclusion that the plaintiff was at fault. The motions for a nonsuit and a directed verdict were properly denied.
There was evidence that on the day of the accident the defendant was sawing logs belonging to one Page and that Page hired and paid Robie, the man whose duty it was "to get the logs from the pond" by the use of the windlass. The defendant requested the court to charge the jury as follows: "If you find that this apparatus was not under the control of the defendant then your verdict must be for the defendant regardless of its condition." Upon the evidence, no such finding could have been made and, therefore, the request, if based upon a correct theory of the law, was properly denied.
Judgment on the verdict.
All concurred.