Zajac v. Amoskeag Manufacturing Co.

Snow, J. The plaintiff, the only witness to the accident, testified in substance that, observing the middle roll was stopped, he reached through the opening beneath the bearing to start it; that when he touched the bottom of the roll it moved fast and caught his hand; that ho “yanked it and pulled it out,” that the nails on the inside of the belt scraped the back of his fingers and knuckles and that the roll turned the arm and broke it. The only other evidence bearing on the manner in which the plaintiff’s hand was caught is the testimony of the plaintiff’s mechanical expert, who stated that the plaintiff must have touched the moving apron which drew the hand into the nip between the roll and the apron. The plaintiff’s claim is that the defendant was negligent (1) in furnishing a defective machine, (2) in failing to give proper warning of the defect. The defect relied upon was a depression about one-fourth inch deep in the lower side of the inclined slot or bearing which had been created by eighteen years’ wear of the revolving gudgeon. The evidence tended to show that the shoulder of the depression had a tendency to check to some extent the otherwise free upward movement of the roll if pressure should be applied from beneath. The plaintiff’s contention is that, as his hand when caught between the roll and belt reached across beneath the roll, and as his shoulder was higher than the roll, the roll would necessarily have been lifted from its socket by the upward motion of the arm and the belt, and that, therefore, but for the defect, the forearm would not have been broken. To state plaintiff’s position in another way —■ it is not claimed that the defective bearing caused the hand to be caught: the claim is that, but for the defect, the hand having been caught, the plaintiff’s injury would have been limited to the fingers and knuckles. In other words, the plaintiff’s theory is not that the accident would not have happened but for the defect, but that, except therefor, the progress of the accident would have been interrupted before the infliction of the injury to the forearm. This position gives rise to two questions, namely, (1) whether or not on the evidence it could be found that the injury to the forearm was caused by the defect, (2) if it could be so found, whether *260 or not it could be found that the failure of the defendant to repair the defect was- a breach of a duty owed the plaintiff, or in other words was negligent. To support his. contention on the first of these issues the plaintiff relies upon his mechanical expert, who testified in substance that any obstruction passing into the nip of the belt and roll would tend to lift the roll free from its bearing, and that therefore with a machine in normal condition he would not expect a serious injury to a man’s hand caught between the belt and the roll. In so far as this expert opinion is offered to prove that, except for the worn bearing, the upward force supplied by the belt against the side of the roll, plus an obstruction the thickness of a man’s hand, would have lifted the roll out of its bearing rather than cause it to continue to rotate, it is mere conjecture. Any finding based upon such an opinion could be no more. As the plaintiff testified that he did not try to lift the roll, any upward pressure applied by him must therefore have been involuntary. It is likewise mere conjecture. (1) that there was an involuntary upward motion of the plaintiff’s arm, (2) that such motion, if made, would have prevented the injury to the forearm but for the resistance of the defective bearing. Essential facts cannot be based on conjecture. If, however, it could be. found that the injury to the forearm was caused by the worn bearing, the second question would then be presented, namely, whether or not this defect was a breach of defendant’s duty to the plaintiff. The test to determine this question is to inquire whether or not there is evidence from which it could be found that the defendant (1) should have reasonably anticipated that the plaintiff, in peril from having been caught between the belt and the roll, would have escaped severer injuries but for this defect, (2) and therefore should reasonably have provided against such a contingency. Plaintiff’s contention is in effect that the defendant’s duty required it to maintain the bearing in new condition as a safety device to protect operatives whose fingers might be caught between the belt and the roll. It is a master’s duty to provide a safety device only where it is reasonably required to meet - §, foreseeable danger. There is no evidence from which it could be found that such an accident was reasonably to be anticipated by any one, or that the open bearing was designed as a safety device or was so regarded by the plaintiff. There is no evidence that the plaintiff was in any way misled, or that he relied upon the roll’s lifting out. He testified that he never knew one of the rolls to come out of its socket. It does not appear that he knew that the roll *261 could be removed, or that the bearing was not a solid bearing. We discover no evidence which would support a finding that the defendant should have reasonably anticipated and provided against the contingency which plaintiff’s accident presented. It follows from the foregoing that, if the plaintiff can recover, it is because the danger of getting his hand caught between the roll and belt, without reference to the alleged defect in the bearing, was not an assumed risk of his employment. The defendant had accepted the provisions of Laws 1911, c. 163. This action is, therefore, at common law. To recover, the plaintiff must establish not only that the defendant’s negligence caused the injury but that the injury arose from a risk which the plaintiff did not assume. The burden of proof of the non-assumption of the risk is on the plaintiff. Bjork v. Company, 79 N. H. 402, 404, 405; Smith v. Company, 80 N. H. 299, 300; Olgiati v. Company, 80 N. H. 399, 402; Knighton v. Company, 80 N. H. 546. Notwithstanding his ignorance of the English language, the plaintiff’s testimony shows that he had a good understanding of the operation of the machine. He knew that the apron moved at a uniform rate of speed; that the roll was propelled by friction with the inside of the belt which formed a part of the apron; that the slats were fastened to the belt by metal pins or rivets which showed inside the belt next the roll at the point where he touched the roll. He testified that these nails were what scraped the back of his hand. When he inserted his hand he knew the apron -was moving and lay against the roll. He had sometimes taken the precaution to use a stick to start the roll. He had operated the machine for five or six years. This evidence is capable of but one inference, namely, that the danger of getting his hand caught was obvious to a man of plaintiff’s experience and intelligence. The plaintiff has, therefore, failed to maintain the burden of proof that his injury was due to a risk which he did not assume. Heliance is placed upon the plaintiff’s testimony that he did not know when he touched the roll that he was in danger of getting hurt. But proof of his unconsciousness of danger does not establish his non-assumption of the risk. “The test to determine that question is to inquire whether he knew of the physical condition of the defendants’ instrumentalities of which he complains and appreciated the risk of the particular danger incident thereto which caused his injury . . . and not whether he was conscious of his danger. . . . In other words, notwithstanding the evidence on which the plaintiff relies is relevant to the issue of his care, it is not sufficient, in and *262 of itself, to prove that the defendants were in fault; for the only duty they owed him in so far as instrumentalities were concerned was that of notifying him of those dangers of the service of which they did and he did not know.” Fontaine v. Company, 76 N. H. 163, 164; Paige v. Company, 80 N. H. 439, 440. The plaintiff assumed the risk of all the dangers of the employment, of which he either knew, or would have known if he had used ordinary care for his own safety. Bergeron v. Company, 80 N. H. 231, 232; Cassidy v. Corporation, 79 N. H. 427, 429. The danger of getting his hand caught between the roll and belt being obvious to a man of plaintiff's intelligence and experience, if he did not know of and appreciate it, the fact was due to his want of ordinary care. Hicks v. Company, 74 N. H. 154; O’Hare v. Company, 71 N. H. 104. The plaintiff has failed to sustain the burden which was on him of proving either that he did not know or that he was not in fault for not knowing of the dangers of placing his hand on the roll when the apron was moving. Smith v. Company, 80 N. H. 299, 300. Exceptions sustained: verdict and judgment for defendant. Peaslee, J., did not sit: the others concurred.