Hicks v. Claremont Paper Co.

Chase, J. This case so closely resembles O'Hare v. Cocheco Mfg. Co., 71 N. H. 104, that it must result as that case resulted. In this, as in that case, the only negligence with which the defendants are charged is their failure to warn the plaintiff of the dan *157 gers incident to his service. As in that case, so in this, the dangers were obvious; and if the plaintiff did not know of and appreciate them, the fact was due to his want of ordinary care. The plaintiff was a man of mature age and average intelligence. He had worked about the machine which caused his injury ten weeks. Although his duties did not pertain to the particular part of the machine where he was injured, he must have acquired a general knowledge of the machine and its operation. His description of them upon the witness stand shows this. If this knowledge, together with the knowledge acquired from his observation of the process of washing and turning the belts of press rolls on two or three occasions, and from his experience in assisting in putting in a new belt, were not sufficient to inform him of the dangers attending the process of turning belts, it is inconceivable that he could have failed to learn of such dangers as he stood by the machine the night of his injury and attempted to assist in the process, unless he failed to make such use of his senses and faculties as a person of average prudence would make under such circumstances. If he exercised ordinary care, he must have acquired knowledge of the dangers before he took hold of the belt to assist in turning it. The place was well lighted. The belt was moving “ fairly fast ” toward and between the revolving rolls which pinched it as it passed. This was taking place directly before, and within three or four feet of, his eyes. He knew that the belt and press rolls were in motion, and that his hand would be injured if it was caught by the rolls. Although he could not see his hand when under the belt, he could not have been unconscious of the fact when it moved toward the rolls. He must have known that the belt would carry his hand to the rolls if he held on to it, and that the only way to escape injury was to release his hold seasonably. There is no evidence that it would be difficult to do this, or that special precautions were necessary. Nor is there any definite evidence as to the speed of the belt, so that it could be inferred therefrom that one taking hold of it could not subsequently let go in season to avoid injury. 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. But the burden of proof was upon the plaintiff, and the absence of evidence in relation to these matters does not sustain that burden. The mere fact of injury does not establish the defendants’ fault. If the absence of proof is due to mistake or misfortune, justice can hereafter be done upon proper proceedings in the superior court; but the possibility of evidence cannot sus *158 tain a verdict rendered without evidence upon an essential point. As the evidence stands in the record, there was no concealed danger in the operation. The defendants could not have told the plaintiff anything about the danger which he did not learn from his observation, or would not have learned if he had exercised ordinary care. The machine itself, by the character and motion of its parts, continuously warned him of the dangers to which it exposed him, as fully and forcibly as human language could have done. The plaintiff, by his contract of service with the defendants, took upon himself the risk of injury from these dangers, and consequently has no right of action against them for the injury he has suffered therefrom. The defendants’ motion should have been granted. Exceptions sustained: verdict set aside. Young, J., dissented :• the others concurred.