Decided May 1, 1934.
A person may stand in the relation of servant to a corporation notwithstanding many of his duties are managerial in nature, if as respects the work in issue he is completely subject to the direction and control of another. While engaged in work for the corporation the title or relative rank of the person so directed and controled is not decisive of his rights, but in the course of such work he stands in the relation of a servant to the corporation and is entitled to the rights and subject to the disabilities of a servant as respects the same. The chief executive officer of a manufacturing establishment is not personally chargeable with knowledge of defects in the installation of machinery occurring while he was absent for some weeks from the plant and while another officer was in command. The criterion by which a master's appreciation of danger is to be judged is not whether he should have anticipated the occurrence of injury in the precise way the accident happened but whether he knew a substantial injury was likely to occur because of the continuance of an unusual situation. A request is rightly refused when its effect would be to give apparent importance to a wholly inconclusive issue to the obvious prejudice of the opposite party. As bearing on the question of damages from an injury, the evidence is admissible that although the plaintiff's salary was paid during the period of his disability he had obligated himself to return the amount thereof. If such evidence seemed objectionable on the ground that it tended to disclose that the defendant carried liability insurance, a request for a proper use of such evidence should have been made; but the defendant was not entitled to have the evidence excluded. Evidence that loose planks had been placed as a cover upon an "agitator box" on the edge of which the plaintiff was properly standing in attempting to clear machinery from accumulations of pulp, was properly submitted on the question whether the defendant had failed to protect him from the danger of being caught in any way by the paddles revolving in the box. An employee's conduct in walking along the edge of an "agitator box" instead of on the planks constituting its cover, his purpose in so doing being to work as far away as possible from dangerous revolving rolls and to avoid the danger incident to turning his back toward them, did not constitute contributory negligence as a matter of law. And so of the employee's omission to remove the planks and to substitute an iron cover from one of the other "agitator boxes."
CASE, for negligence to recover damages for personal injuries alleged to have been suffered by the plaintiff while in the employ of the defendant. Trial by jury with verdict for the plaintiff. Transferred by Page, J., upon the defendant's exceptions to the admission of certain testimony; to the denial of its motions for a nonsuit and a directed verdict; to the charge; to the denial of its requests for instructions, and to the denial of its motions to set aside the verdict. The exceptions considered are more fully stated in the opinion.
The evidence tended to prove the following facts.
The defendant operates a paper mill in the town of Northumberland where it is engaged in the manufacture of tissue papers. The president and general manager of the company is James S. Wemyss, who is not a resident of New Hampshire. The plaintiff is his son and holds the office of treasurer of the corporation. He resides in Northumberland, and, in the absence of his father, has full charge of the plant. He agreed that the term "resident manager" described his position with sufficient accuracy, although it did not appear that this title was known to the defendant corporation. When his father was at the plant the plaintiff "was under his instructions completely."
The plaintiff was injured while at work upon a de-inking machine, so-called, which had recently been installed in the defendant's mill. The function of this machine is to remove ink from printed paper and thus convert it into stock for use in the manufacture of the defendant's products. It consists primarily of four pairs of large rolls, each pair being separated from its neighbor by an "agitator box." When in operation the paper stock is first reduced to pulp in a machine known as a beater and then passes through each set of rolls and through each of the agitator boxes. The lower roll of each set is known as a cylinder roll and the upper one as a couch roll. The couch roll is fitted with a device known as a "doctor" which scrapes off the pulp accumulating on this roll and causes it to drop upon an apron located behind the rolls from which it should flow or slide into an agitator box. Each of these boxes is about 14 inches wide and contains a series of revolving paddles by which the pulp is subjected to a churning process. Two of the agitator boxes had iron covers, but the one between the first and second sets of rolls had been covered by two loose planks two inches thick and six inches wide, extending across the machine. At the time of the accident, plaintiff was working between these two sets of rolls and was injured by getting his right foot into the agitator box. The negligence complained of was the failure of the defendant to furnish a suitable cover for this box.
During a large part of the time while the machine was being set up, and thereafter for a period of about five weeks up to the day of the accident, the plaintiff was away from the defendant's plant on a selling trip, and later on a vacation. Immediately after his return, upon September 3, 1931, he was directed by his father to go down to the pulp mill and see if he could "get that machine working." Accordingly the plaintiff, with the help of three other men, started the machine and after some time found that the stock was too dry, so that it began to pile up on the apron behind the first set of rolls, from which it threatened to fall into the gears on the back side of the machine and cause damage. The plaintiff, therefore, called upon two of his assistants, who were working on a pump, to furnish more water, and went between the first two sets of rolls for the purpose of pushing the accumulated pulp off from the apron. In so doing, he walked along the edge of the agitator box upon an iron flange about two inches in width, steadying himself by holding on to an iron truss with his left hand. While standing upon the edge of the box, with his left foot in front of the right, and bending forward so as to reach the pulp with his right hand, he was injured in a manner which he described as follows:
"The water started to come out of the pump and with that the stock in the rolls which are four of them just automatically started to loosen and some of the big chunks of stock that was in back of it came through jarring that couch-roll which in turn, the doctor being on top of it jumps up hitting my arm which was partly resting on it at the time and threw me off my balance and in doing that my right foot hit the side of the cover and the planks gave away, slid right forward and my foot went in . . . . Q . . . . Now when your foot went into the box there, what happened as far as the machine is concerned? A. Well, there was a grinding, all I could think about at that time was my leg caught, feel it grab ahold of it, grabbed here and sucked me right in through to my knee and I yelled, `Help, help' and as I was facing back towards the river I noticed the belt that was driving the thing stop more or less and slide off. The machine stopped. My leg really just plugged the machine."
Other facts appear in the opinion.
Bernard Jacobs (by brief and orally), for the plaintiff.
Irving A. Hinkley (by brief and orally), for the defendant.
Underlying much of the defendant's argument is the thought, not clearly expressed, that the relationship between the defendant and the plaintiff was not that of master and servant, and that the rules of law governing the latter relationship were, therefore, inapplicable. This theory is untenable. "The word servant, in our legal nomenclature, has a broad significance, and embraces all persons of whatever rank or position, who are in the employ, and subject to the direction or control of another in any department of labor or business. Indeed it may, in most cases, be said to be synonymous with employee." Wood, M. S., s. 1; 1 Labatt, M. S., ss. 2, 6; 39 C.J. Tit, M. S., s. 1, and cases cited. The plaintiff was undoubtedly an employee of the defendant, and although many of his duties were managerial in their nature he was, according to the uncontroverted evidence, completely subject to the direction and control of his father, the general manager. We, therefore, think it is plain that he was entitled to the rights and subject to the disabilities of a servant. Accordingly it must be held that the trial court was correct in its instruction to the jury that plaintiff's title or relative rank in the employment was not decisive of his rights.
The contention of the defendant that there was no evidence of its negligence is without merit. The necessity for covers to the agitator boxes was apparently conceded at the trial, and under the evidence, could not be denied. There was abundant evidence that the two planks which were laid over the first box did not constitute a proper cover and that in order to make one they should have been cleated on the bottom so as to hold them together and prevent sliding either laterally or longitudinally. These planks were installed by defendant's mechanics, and the defendant was, therefore, chargeable with knowledge of their actual condition as well as their unsuitableness for the purpose to which they were put. Cases like McIntyre v. McIntyre, ante, 479, holding that a master who furnishes suitable materials for his servants to use in the progress of the work is not liable for their improper use, have no bearing upon the duty of a master to furnish reasonably safe machinery.
The argument that the plaintiff cannot recover because "the plaintiff himself was the agent who was supposed to have discovered the defect if there was one discoverable by proper inspection" will not bear examination. In making this argument the defendant seems to assume that there is a rule of law to the effect that the chief executive officer of a manufacturing establishment is personally chargeable with knowledge of all defects in the plant which might be discovered by proper inspection. We need not consider the dubious nature of this assumption (see Smith v. Bowersock, 95 Kan. 96; s. c. aff'd, 243 U.S. 29) since the evidence discloses two complete answers to the defendant's contention.
In the first place, the plaintiff was not in charge of the defendant's plant at the time when the installation of the machine was completed and when final inspection should have been made. During this time, as above stated, the plaintiff was away and the plant was in charge either of his father, the general manager, or his cousin, Walter F. Wemyss, "an assistant manager," who, according to the evidence, was in command of the establishment in the absence of both the plaintiff and his father. Under these circumstances there is no rule of law which would require that the plaintiff be treated as though he had actual knowledge of the condition of the wooden cover.
In the second place, Walter F. Wemyss, the assistant manager, testified specifically that he "had charge of the looking after the safety of the machinery" and that he was "responsible for the safety of the mill." Consequently the defendant's argument fails because its factual foundation was not established.
It is argued that the defendant "cannot be held chargeable with any anticipation that an employee would, while the machine was running, walk across a wet, slippery two-inch iron partition and attempt to balance himself on such a partition with an opening at the rear of the partition into which such employee might fall." The obvious answer is that the presence of men between the two sets of rolls was to be expected and due care required that they be protected from the danger of coming in contact with the revolving paddles in the agitator box. Whether the defendant should have foreseen that an accident might happen precisely as this one did is immaterial. The criterion by which a master's appreciation of danger is to be judged is no less exigent than that applicable to a servant. "The test to determine that question is not to inquire whether he anticipated being injured in the precise way the accident happened, . . . but whether he knew he was liable to receive a substantial injury because of the unusual condition, if it was permitted to continue." Roy v. Hodge, 74 N.H. 190, 191. "Lack of care . . . which renders the work-place unsafe, of which the master knows or ought to have known in season to prevent the injury, is a breach of that obligation [to provide a safe workplace] without reference to the manner in which the danger was created." Leazotte v. Company, 74 N.H. 480, 481; Tullgren v. Company, 82 N.H. 268, 275, 276.
There was evidence, however, that it is a common practice for men to walk along the edge of the agitator boxes and, as more fully pears hereafter, that there are adequate reasons for the existence of such a practice. Under these circumstances it was for the jury to say whether the defendant should have anticipated such conduct.
Since the plaintiff was not chargeable, as a matter of law, with knowledge of the condition of the cover, the argument that he assumed the risk of injury from that cause comes to nothing.
The argument that the plaintiff was guilty of contributory negligence because he chose to walk along the edge of the agitator box instead of on the cover, is also without merit. In walking between two sets of rolls, which were apparently less than two feet apart, due care rather obviously required that a person should keep as far as possible away from the rolls which were turning inward and were, for this reason, dangerous, and this was one explanation given by the plaintiff for his conduct. He testified that the "first thing anybody is cautioned" about "is to work as far away as possible from rolls turning in"; that the course which he pursued would carry him "sufficiently away from the rolls" and that "in paper machines we always work on the front of the press, not on the back." Another reason given by the plaintiff for his conduct was that by working in the position above described he avoided turning his back to the rolls from which danger was to be anticipated. Under these circumstances the question of his due care in walking where he did was plainly for the jury.
Similarly, the defendant's other suggestions that the plaintiff might have moved the planks before he went between the rolls or substituted for them an iron cover from one of the other agitator boxes, presented only issues of fact for the jury.
The defendant requested the court to charge the jury that if the accident was caused by the negligence of a fellow-servant of the plaintiff, there should be a verdict for the defendant. So far as we can see, the case presented no issue to which this rule was applicable and the request was properly denied.
The defendant also requested the court to charge the jury as follows:" If you find that the defendant had no reason to apprehend that the plaintiff would adopt an improper method of working on and about the machine involved in the accident, then it owed no duty to the plaintiff to guard against the dangers incident to such improper method of use and operation." This request was objectionable because of its apparent assumption that the plaintiff did in fact adopt an "improper method of use and operation." It might properly have been denied upon this ground. Its denial was required, however, for another and more important reason, i.e. because it was designed to raise an issue of fact which was immaterial to the decision of the case. As indicated above, the gist of the plaintiff's claim was not that the defendant failed to protect him against the danger of slipping from the edge of the agitator box, which with a proper cover in place would have been negligible, but that it failed to protect him from the danger of being caught in any way by the paddles revolving in the box. The effect of the requested instruction would, therefore, have been to give apparent importance to a wholly inconclusive issue, to the obvious prejudice of the plaintiff. The rights of the defendant with reference to its claim that the plaintiff adopted an improper method of doing his work were sufficiently protected by the charge upon the question of contributory negligence.
The plaintiff testified upon direct examination that his salary was paid during the period of his disability, which extended over eleven months. Subsequently, subject to the defendant's exception, he testified as follows: "Q. And did you obligate yourself to return it? A. Yes." With reference to the question of damages it was obviously proper for the plaintiff to show that the payments made to him during his disability in the form of salary were really in the nature of advancements which he was bound to repay. For this purpose the evidence was admissible.
The defendant argues that there could have been "only one purpose in offering the evidence and that was to convey to the jury that the case was being defended by an insurance company and that the nominal defendant was not averse to a large verdict being rendered against it." If the evidence was, indeed, subject to misuse in this way, the defendant might have protected its rights by asking for instructions limiting its use by the jury. It could not demand as of right that the evidence be excluded. State v. Travis, 82 N.H. 220; Tuttle v. Dodge, 80 N.H. 304, 310; Cobb v. Follansbee, 79 N.H. 205, 210. This exception is therefore overruled.
The exception to the denial of the defendant's motion to set aside the verdict presents no further question of law.
Judgment on the verdict.