(79 N. H. 439)

(111 A.)

MARTEL v. WHITE MILLS. (Supreme Court of New Hampshire. Hillsborough. June 1, 1920.)

4. Master and servant 179 Fellow servant's negligence actionable under statute. Under Laws 1911, c. 163, § 2, employer was liable for injuries to employé, though negligence of fellow servant, unless negligence of the injured employé contributed to cause the acci.dent.

2. Master and servant 287(4)-Negligence of coemployés held question for jury.

In action for injuries to cotton mill card re-ough County; Marble, Judge. pairman, whether the machine had been started Action for personal injuries under Laws of 1911, c. 163, by Wilfred Martel against the

by other employés, in the absence of the repairman, after he had stopped it, held a question for the jury.

3. Master and servant 179-Negligence of fellow employé violating rule actionable under

statute.

Under Laws 1911, c. 163, employer was liable for injuries to cotton mill card repairman, though accident was caused by the negligence of other employés in starting the machine after it had been stopped for the purpose of repairs, in violation of a rule of the employer. 4. Master and servant 348-Compensation Act liberally construed.

Laws 1911, c. 163, being remedial in its nature, should be liberally construed. 5. Negligence 136 (26) -Contributory negligence jury question.

Contributory negligence is a question for the jury, unless the evidence so plainly and clearly establishes such negligence that no reasonable man could come to any other conclusion.

6. Master and servant 289 (22)-Contributory negligence of machine repairman held for jury.

Where a cotton mill card repairman, who had stopped card and left it for a minute or two, was injured because of failure to notice, on his return to the work, that the machine had been put in motion contrary to a rule prohibiting others from starting it, whether his failure to notice that the machine was in operation was contributory negligence held a question for the jury.

7. Trial 121 (1) Argument that adverse counsel lacks confidence in case not ground for disturbing verdict.

If the conduct of counsel for defendant before the jury appears to indicate that he lacks confidence in his case, argument of plaintiff's counsel that defendant's counsel "knows that this plaintiff has told you absolutely the truth, and that this defendant is liable in this cause of action," though of a character not to be commended, is not ground for disturbing the verdict.

8. Trial 251(1)—Submission of claim other than that on which litigant relies error.

If a litigant presents to the jury one clear and distinct issue, and it is clearly apparent he

White Mills.

The defendant was subjected to the above act, and had not accepted its provisions. Trial by jury, and verdict for the plaintiff. There was a view of the premises

where the plaintiff was employed, and of the machine at rest and in motion upon which he was injured. Exceptions were taken by the defendants to the denial of their motions for a nonsuit and a directed verdict, to argument of counsel, and to the charge of the court. The facts appear in the opinion. Exceptions overruled.

Doyle & Doyle and Jeremiah J. Doyle, all of Nashua, for plaintiff. Nathaniel E. Martin, of Concord, for de fendant.

PLUMMER, J. The plaintiff's evidence tended to prove the following facts: The plaintiff was employed in the defendants' cotton mill to grind and repair their cards. He had been thus employed for a year and a half before his injury. The accident occurred on a dark, cloudy morning, a few minutes after 7, October 19, 1917.

When the plaintiff came to work that morning, the second hand informed him that a card was wet, and needed drying. The plaintiff immediately went to the card, and stopped it, and after going upstairs, and putting on his overalls, he returned to the card, and took out its feed roll (its cotton rolls already had been removed). He then to use in drying the card, but on his way he started to go upstairs to obtain some whiting remembered that there was no whiting, and went back to the card and took some waste, and rubbed it across the feed plate once or twice, when his fingers were caught, and drawn into the licker-in, and injured. When he started to wipe the feed plate he did not notice the card was running. He could have seen it was running if he had looked, but he had just stopped it, and supposed it was not in operation. There was a well-known and strictly enforced rule of the defendants that where a card was out of order, and was stopped to be repaired, no one should

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

start it except the repair man. The card [ceived a liberal construction in this state. in question and the floor about it on the morning of the accident were wet, and it was plain to be seen that the machine was not in condition to operate. The room where the plaintiff was injured contained two rows of cards, 15 cards in a row.

When the plaintiff was at work about the card that morning before the accident, there were 2 employés working 2 or 3 cards beyond where the plaintiff was, at a distance of about 15 feet. One of these men by the name of Bélanger operated the row of 15 cards that included the card involved in the accident. The other employé operated the other row of cards, but they worked together in stripping the cards. Bélanger as he stood was facing, and in full view of the plaintiff, and the other operative was standing with his back to the plaintiff. Nine or 10 other employés, who were working in another part of the room, were not visible from the place where the accident occurred.

[1] If it could be found upon the plaintiff's evidence that the accident was caused by the negligent act of an employé of the defendants, this would establish their liability, unless it appeared "by a preponderance of evidence that the negligence of the plaintiff contributed" to cause the accident. Laws 1911, c. 163, § 2.

Boody v. K. &. C. Mfg. Co., 77 N. H. 208, 90 Atl. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280; Wheeler v. Contoocook Mills, 77 N. H. 551, 94 Atl. 265; Barber v. Jones Shoe Co., 108 Atl. 690.

The defendants contend that the plaintiff's contributory negligence precludes his recovery in this action; that his conduct in rubbing the feed plate with waste without observing that the card was running demonstrates his inexcusable carelessness.

[5] It cannot be held as a matter of law that the plaintiff was guilty of negligence unless the evidence so plainly and clearly establishes that fact that no reasonable man could come to any other conclusion. If the situation is such that ordinary men might differ in determining the question of the plaintiff's carelessness, it is the judgment of the jury that is required, and "the court cannot usurp the province of the jury, or decide as a matter of law what is plainly a question of fact." Demars v. Glen Mfg. Co., 67 N. H. 404, 406, 40 Atl. 902, 904; Roberts v. Railroad, 69 N. H. 354, 45 Atl. 94; Whitcher v. Boston & M. Railroad, 70 N. H. 242, 246, 46 Atl. 740; Minot v. Railroad, 74 N. H. 230, 234, 66 Atl. 825; Goodale v. York, 74 N. H. 454, 69 Atl. 525; Kelland v. Co., 75 N. H. 168, 170, 71 Atl. 947; Weeks v. Co., 78 N. H. 26, 30, 95 Atl. 658.

The cotton card upon which the plaintiff was injured was largely covered in, but the evidence tended to prove that there was a pulley at either end of the machine that was exposed to view, and there was an open space over the licker-in of an inch and a half. If one approaching the card noticed, he could tell if it were in operation, for he could see whether the pulleys and the licker-in were revolving. If the plaintiff when he first entered the room in the morning had met with the accident in question, his carelessness in not observing that the machine was in operation would have been inexcusable. The circumstances, however, that produced the accident were peculiar.

[2-4] It is claimed by the defendants that it could not be found that Bélanger or any other employé of the defendants started the card in the absence of the plaintiff. The evidence was that the card was not in operation when the plaintiff left the room; that it was running when he returned; that no one was in the room except the employés of the defendants; and that the card would not have started except by human aid. Therefore the jury would be amply justified in concluding that an employé started the card. The defendants say if an employé did negligently start the card after the plaintiff had stopped it for the purpose of repairs, he was transgressing a well-known and never violated rule of the defendants, and that in so doing he was not within the scope of his employment, and [6] The facts deducible from the evidence therefore the defendants would not be liable are that the plaintiff just previous to the for his negligent act. If this position might accident stopped the card; that when he be maintained at common law, it cannot be left it to obtain some waste it was at rest, sustained under the above statute, which ap- and would have remained so if it had not plies to this case. That act provides that been put in motion by some person; that he If personal injury by accident arising out of was absent for only a minute or two; that and in the course of his employment, is he was fully aware of the well-known and caused to a workman by the negligence of inviolate rule of the defendants that no a coemployé, the employer is liable. And if one should start the card, after he had the employé in starting the card which the stopped it for repairs, except himself, and plaintiff had stopped was violating a rule of the appearance of the card plainly indicated the defendants, he was nevertheless, under a that it was out of repair, and the removal liberal construction of the statute, their em- of the feed roll and the cotton rolls showed ployé for whose negligence they were respon- that it was not equipped for operation. The sible. The statute (Laws 1911, c. 163) upon jury might well conclude under such condiwhich this action is founded is remedial in tions that the plaintiff was not guilty of its nature, and as such should and has re-negligence in failing to look and see if the

(111 A.)

The court in the charge instructed the jury that if the accident was due to the negligence of a fellow workman of the plaintiff, then the defendants would be liable, providing the plaintiff was free from fault. The defendants excepted, contending that the instruction relating to negligence should not have been general, referring to any employé of the defendants, but should have been limited to the negligence of Bélanger.

machine were in operation before he began be commended, it does not furnish a ground to rub the feed plate; that it was not for disturbing the verdict. unreasonable for him to assume that the card was at rest, and to commence his work upon it without thinking to notice whether it was in motion. "Precaution is a duty only so far as there is reason for apprehension." Shea v. Railroad, 69 N. H. 361, 364, 41 Atl. 774, 775. The jury were warranted in finding that the plaintiff was not negligent in failing to perceive that the card was running, and that his supposition that it was not in operation, which was responsible for his failure to observe it, was justified. "Upon the question of the plaintiff's negligence, it may be, as said in Mitchell v. Railroad, 68 N. H. 96, 116, that 'reasonable and fair-minded men might differ; but it cannot be declared that no reasonable man could find as the jury did.'" Blood v. New Boston, 77 N. H. 464, 92 Atl. 954. [7] Counsel for the plaintiff in argument error. Bjork v. Co., 79 N. H. - 111 Atl. said: 284; Gage v. Railroad, 77 N. H. 289, 296, 90 Atl. 855, L. R. A. 1915A, 363.

"Right down in Brother Martin's heart he knows that this plaintiff has told you absolutely the truth and that this defendant is liable in this cause of action."

[8] The defendants take the position that the plaintiff presented and tried his case solely upon the ground that the card was negligently started by Bélanger, and that this issue only should have been submitted to the jury. If a litigant presents to the jury one clear and distinct issue, and it is clearly apparent he relies upon no other claim, then the submission of any other issue would be

[9] In the plaintiff's declaration it is set forth in general terms that the plaintiff was injured by reason of the negligence of a fellow employé in starting the card upon which the accident occurred. The evidence introduced was not confined to proving that Bélanger was the only employé who could have started the card in the plaintiff's absence, but it could be deduced from the testimony that it was done by Bélanger or his fellow employé who was working with him. The plaintiff's counsel in his opening and argument stated There are,

Exception was taken by the defendants to this language. Previous to the making of the above statement plaintiff's counsel had called attention to the manner in which defendants' counsel had tried the case, claiming that his appearance and the way he conducted himself before the jury was evidence that he had no confidence in the defendants' case. If the conduct of counsel before the jury ap-that Bélanger started the card. peared to indicate that he had no confidence in the case, and we cannot say that it did not, then it might properly be argued therefrom that he knew the plaintiff's evidence was true, and that the defendants were liable. And it was not exceptionable because it was stated directly as a fact. Lord v. Railway, 74 N. H. 295, 67 Atl. 639; Kambour v. Railroad, 77 N. H. 33, 52, 86 Atl. 624, 45 L. R. A. (N. S.) 1188; Sanders v. Railroad, 77 N. H. 381, 384, 92 Atl. 546; Grossbard v. Railway, 78 N. H. 496, 102 Atl. 534; State v. Small, 78 N. H. 525, 529, 102 Atl. 883. While argument of this character is not to

however, general statements therein which indicate that the plaintiff did not intend to rest his right of recovery solely upon the negligent act of Bélanger, but upon the negligence of any employé of the defendants. A careful consideration of the case and the manner in which it was tried leads to the conclusion that the court did not err in declining to instruct the jury that they must find that the accident was caused by the negligent conduct of Bélanger, or return a verdict for the defendants.

Exceptions overruled.
All concurred.

(268 Pa. 200)

(111 A.)

The bill of complaint was as follows: To the Honorable the Judges of Said Court: The plaintiff complains and says: First. That the plaintiff, the city of Scranton, is a city of the second class, duly incorporated under the laws of the commonwealth of Pennsylvania, and as such has the control of and is charged with the duty of maintaining the highways, streets, and public thoroughfares within its corporate limits in a condition safe for public use and travel.

way Company thereafter requested the consent of the plaintiff, city of Scranton, as required by section 9 of article 17 of the Constitution of the commonwealth of Pennsylvania, above set out, to construct its railways within the limits of said city, and upon certain of its streets according to the route proposed in its articles of incorporation, and the plaintiff, city of Scranton, being willing that said railway company should construct its railway within its corporate limits and upon said streets under certain conditions, by and through its common and select councils, enacted an ordinance, File of Common Council, No. 69, 1892, entitled "An ordinance granting right of way to the Valley Passenger Railway Company to lay tracks and erect poles and wires, and run cars by electric power on certain streets within the city of Scranton," which said ordinance was approved by the mayor of the city of Scranton January 16, 1893, authorizing the said Valley Passenger Railway Company to construct its said railway within the limits of the city of Scranton, and upon the streets in said ordinance mentions in said ordinance set out and provided, and tioned and described, upon the terms and condiupon the express condition of the acceptance of said terms and conditions by the said Valley Passenger Railway Company.

Sixth. That the Valley Passenger Railway Company, under the conditions and provisions of said ordinance, was authorized to lay a single track with the necessary switches and turnouts, erect the necessary poles and wires, and operate its road by electric power on the following named streets of the plaintiff, city of Scranton: Commencing at the city line where it crosses the Providence and Carbondale road; thence southerly on said road and Main avenue to Pond street; thence on Pond street to Depot street, across the Delaware & Hudson Coal Company's tracks to road or street leading to the Lackawanna river; then on said street or road to Race street; thence on Race street to the Boulevard road; thence on the Boulevard road to Sanderson avenue; thence on Sanderson avenue to Breaker street; thence on Breaker street to Dickson avenue; thence on Dickson avenue to Abington road; thence on Abington road to Marion street; thence on Marion street to Sanderson avenue; thence on Sanderson avenue to Walnut street; thence on Third. That section 9 of article 17 of the Walnut street to Wyoming avenue; thence Constitution of Pennsylvania provides: "No on Wyoming avenue to Ash street; thence on street passenger railway shall be constructed Ash street to Washington avenue; thence on within the limits of any city, borough or town-Washington avenue to Cherry street; thence ship without the consent of its local author- on Cherry street to Cedar avenue; thence on ities."

Second. That the above-named defendant, the Scranton Railway Company, is a street passenger railway corporation, duly incorporated under an act of the General Assembly of the commonwealth of Pennsylvania approved May 14, 1889, entitled "An act to provide for the incorporation and government of street railway companies in this commonwealth," and is the owner and operator of certain lines of street railway track, trolley wires, poles, and other fixtures constructed and maintained in the highways, streets, and public thoroughfares within the said city of Scranton, hereinafter mentioned and described.

Cedar avenue to South Anthracite street; thence on Anthracite street to the main road leading to Pittston; thence on the main road leading to Pittston to the city iine. Also for extensions and branches as follows: On the Boulevard road from Market street to the city line; also on Green Ridge street westward to Albright avenue, on Albright avenue to Court street, on Court street to Providence road to Tripp street, on Tripp street to Main avenue; thence on Main avenue to Swetland street; thence on Swetland street to Linden street; thence on Linden street to Franklin avenue; thence on Franklin avenue to Mulberry street; thence on Mulberry street to Washington ave.

Fourth. That on October 23, 1892, the Valley Passenger Railway Company was incorporated under the provisions of the act of the General Assembly of the commonwealth of Pennsylvania, entitled "An act to provide for the incorporation and government of street railway companies in this commonwealth," approved May 14, A. D. 1889, for the purpose of constructing, maintaining and operating a street railway for public use in the conveyance of passengers by power other than by locomotive over a proposed route, including certain streets or public thoroughfares of the plaintiff, city of Scranton. Fifth. That the said Valley Passenger RailFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 111 A.-16