The defendants do not deny that they knew or ought to have known of the danger incident to the service to which Lintott was assigned. Their defence is, that he also knew of and fully appreciated it, or would have known of and appreciated it if he had exercised ordinary care, and consequently that he assumed the risk to which he was subjected. He was not specially instructed concerning the dangerous machinery in the immediate vicinity of the place where his service was to be rendered, but the defendants say that the machinery was within the range of his vision, and its dangerous character was so obvious that a man of his age, capacity, and experience needed no instruction. The plaintiff, on the other hand, says that the danger was concealed, and Lintott was not fully aware of it, and could not have discovered it by the exercise of due care. The plaintiff's exception raises the question whether there was any evidence from which it could properly be found that Lintott did *Page 632 not know of and fully appreciate the danger to which he was exposed, or was not chargeable with such knowledge and appreciation. Paine v. Railway,58 N.H. 611.
Everybody must agree that Lintott knew he was very near to a shaft and pulleys that were revolving with great rapidity, and that he was liable to be injured if he came in contact with them. But such knowledge would not acquaint him with the full extent of the risk to which he was exposed. The danger was very greatly increased by his hold upon the belt, encircling the shaft within a few inches of the third pulley and its projecting set-screws. He was instructed "to hold the heft of the belt off the shaft, "but was not told that if he failed to do so the belt was liable to "crawl" toward the pulley. It did not appear that he knew of this fact. It was not obvious, nor a matter of common knowledge. There was nothing in his previous experience in the defendants' shops which conclusively showed that he had seen belts "crawl" under such circumstances. Knowledge of the fact would naturally have stimulated him to exercise greater care. It was necessary to a full appreciation of the risk he was incurring. Cullen knew of the liability of a belt to crawl under such conditions. He assigned Lintott to the service, and in so doing represented the defendants. Jaques v. Company, 66 N.H. 482. The question whether he should not have instructed Lintott about this liability is a proper one for the consideration of a jury.
There was another element of danger which it is doubtful if Lintott knew about, or could have discovered by the exercise of ordinary care, namely, the existence of the set-screws with projecting heads within six or eight inches, more or less, of the belt which he was holding. The facilities for seeing them were not favorable. The place was "pretty dark," and the pulley with its set-screws was making about 225 revolutions a minute. Whether he ought to have inferred that they were there from the knowledge he had of the way in which other pulleys in the shops were secured to shafting, was a question about which fair-minded men might differ. Some might think he had had no occasion to observe set-screws in pulleys, except in the instance when he was cautioned to be careful in oiling a bearing near one, and that the fact that he was then cautioned would lead him to understand that he would be specially cautioned whenever he was exposed to a similar danger; while others might think that a man of his age and capacity, having such opportunities for observation, must have learned of the method so generally adopted by the defendants for securing pulleys to shafting. Cullen's direction "to be sure and hold the belt on the plain piece of shaft" did not necessarily imply that any danger would arise from a failure to comply with it, other than such as was obvious from *Page 633 the proximity of the revolving pulleys. It did not necessarily call attention to the presence of the set-screws and the danger incident to them. Lintott may have understood that the direction was given for Cullen's convenience rather than his own safety, — that such a position of the belt was required to enable Cullen to lace it properly and quickly. Moreover, the belt that was liable to crawl and the projecting set-screws were within a few inches of each other. Each aggravated the danger ordinarily incident to the other. The evidence bearing upon Lintott's knowledge of his surroundings and appreciation of his danger is not so definite and controlling that a jury might not properly find that they were not sufficient under the rules of law to charge him with the risk of injury.
The evidence also tended to show that the injury resulted in whole or in part from these dangerous instruments. The belt was suddenly drawn from Cullen's hands, and Lintott was snatched from the platform and carried around the shaft. After the accident it was found that the belt was coiled about the hub of the pulley and the shaft, inside, over, and outside the set-screws, and a piece torn from Lintott's clothing was confined in the coils. Apparently, the belt began to wind around the shaft and hub before Lintott's clothing was caught in it and he was snatched from the platform. The crawling of the belt seven or eight inches to one side and its entanglement with the heads of the set-screws would account for its being suddenly drawn from Cullen's hands and wound around the hub and shaft. Lintott's hold of the belt and proximity to the shaft and pulley would count for his being caught by the coils of the belt and drawn upon the shaft. There being evidence that was not conclusive as to these questions, they should have been submitted to the jury. Demars v. Glen Mfg. Co.,67 N.H. 404, 406.
Exception sustained: nonsuit set aside.
PEASLEE, J., did not sit: the others concurred. *Page 634