LAW-RELATION OF PARTIES-MILLS-"WORK IN PROX- A servant, working in a room where there was a movable elevator operated by hand, and adjacent to a stamping room containing a powerdriven press, elevators, and stamping machine, was employed in the proximity of hoisting apparatus and power-driven machinery under Workmen's Compensation Law (Laws 1911, c. 163) § 1. (For other cases, see Master and Servant, Dec. Dig. § 361.) (For other definitions, see Words and Phrases, First and Second Series, Hoisting Apparatus.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW. Where a servant's employment brought him at times in proximity to dangerous machinery, although at the time of his injury he was not in proximity thereto, and not within the danger zone, he was within the protection of Laws 1911, c. 163, § 1. (For other cases, see Master and Servant, Dec. Dig. § 361.) Exceptions from Superior Court, Hillsborough County; Peaslee, Judge. Petition by Aimee Morin, administratrix of the estate of Alphonso Lizotte, against the Nashau Manufacturing Company for new trial aftet decision (78 N. H. 354, 100 Atl. 757). From an order granting the petition, the defendant excepts. Exception overruled, and motion for rehearing denied. Doyle & Lucier and A. J. Lucier, all of Nashua, for plaintiff. Branch & Branch and Randolph W. Branch, all of Manchester, for defendant. WALKER, J. [1] By the former decision in this case (Lizotte V. Nashau Mfg. Co., 78 N. H. 354, 100 Atl. 757) it was held upon the facts then before the court that Lizotte could not recover under the statute (Laws 1911, c. 163, § 1) because his of his work should be performed, in the language of the statute, employment in the defendant's mill did not require that any part "on, in connection with, or in proximity to, any hoisting apparatus, or any machinery propelled or operated by steam or other mechanical power." At the hearing upon the plaintiff's motion for a new trial it appeared that the deceased worked in a room Decision rendered, March 5, 1918. 103 Atl. Rep. 312. where there was a movable elevator used for raising and lowering heavy cases of goods, which was operated by hand power. Adjacent to this room was the stamping room, containing a power-driven press used for imprinting the brand or trade-mark on the finished goods. In another adjoining room there were power-driven elevators, upon which the deceased and other employees rode while in the performance of their work. Little doubt can be entertained that the hand elevator is a "hoisting apparatus" within the meaning of the statute, and that the stamping machine and the power-driven elevators are also included in the statutory language. The fact that the stamping machine had not been operated for three weeks before the accident, on account of a strike, did not remove it from the class of machines whose operation involved more or less danger to the employee in the immediate vicinity. It was liable to be put in motion at any time. Its operation was not permanently discontinued. The applicability of the statute to a particular machine does not depend upon its continuous operation while employees are at work. Its liability to be put in motion at any time renders it a dangerous instrumentality installed by the manufacturer for use in his mill or factory. The evidence also justifies a finding that the deceased's work of moving boxes of goods in the storehouse took him into all three rooms; but he had nothing to do with the operation of the machines, and was not injured thereby. From a finding of the foregoing facts it would seem to follow that the storehouse, which is a part of the defendant's manufacturing plant (Boody v. Company, 77 N. H. 208, 90 Atl. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280), and in which the deceased was employed, contained dangerous mechanical instrumentalities of the character contemplated in the statute. In this respect the present case differs materially from that presented on the former transfer. It did not then appear that the deceased's work brought him in proximity to any dangerous machine, and it was held that the statute did not apply, while it now appears, or the fact may be found upon the evidence, that in the performance of his duties he was within the danger zone created by the machinery. It is not essential that all his work should be done in proximity to dangerous machines or that the injuries complained of should result from such machines. If his employment, under a reasonable construction, exposed him to the dangers incident to proximity to machinery, he was an employee under class (2) of the statute, and was entitled to the benefit of such classification. [2, 3] In the former opinion in this case the court in discussing the case of Boody v. Company, supra, say (78 N. H. 357, 100 Atl. 758.): "Boody was employed as a handy man about the factory. He had no particular place to work, but he might be called upon to perform work anywhere in the mill. Hence some of his work inevitably must have been 'on, in connection with, or in proximity to' power-driven machinery. He was therefore engaged in employment (b); and the court held that, as the plaintiff [Lizotte] was so employed, and was killed by an accident arising out of and in the course of his employment, the action to recover damages for his death could be maintained, even though his death. was not caused by the negligence of fellow servants, or by one of the risks incident to work 'on, in connection with, or in proximity to' power-driven machinery. We believe this broad and liberal construction of the statute, considering its remedial nature, was correct." According to this exposition of the Boody Case it is a direct authority for the proposition that Lizotte was within the protection of the statute, because his employment at times brought him in proximity to dangerous machinery, though at the time of the accident he may not have been in such proximity. It The defendant's position is that the plaintiff must show that her intestate was within the danger zone indicated by the statute at the time of the accident, in order to sustain the action. is argued that the Boody Case does not establish the contrary proposition, because Boody at the time of the accident was in proximity to power-driven machinery, that is, that he was working near the defendant's water wheel, and that the decision was therefore right. But whether it might have been put upon that ground it is useless to speculate; for an examination of the opinion clearly shows that it does not proceed upon that theory, while the above quotation from the former Lizotte Case, declaring what the law of the Boody Case is, renders further discussion upon this point unnecessary. Moreover, upon a motion for a new a question of law determined at the first trial is not ordinarily open for additional discussion. Bell v. Lamprey, 58 N. H. 124; Olney v. Railroad, 73 N. H. 85, 91, 59 Atl. 387. The motion for a new trial was properly granted. trial Exception overruled. Peaslee, J., did not sit. The others concurred. for a On Rehearing. Upon the filing of the foregoing opinion the defendant moved rehearing upon the ground that the superior court could not make an order that only the above issue should be retired, but that the whole case must be retired, because the court in this case (78 N. H. 354, 100 Atl. 357) made the following order : "Exception sustained; verdict set aside; judgment for defendants." A hearing was had upon the motion, and the following opinion was rendered thereon: is granted does not require a trial of the issues in which there PLUMMER, J. [4] The practice in this state when a new trial was no error committed, if these issues can be separated from the ones in which the errors occurred. That part of the verdict which is good is preserved, and the part which is bad is destroyed. "The general principle of the correction of errors which occur in judicial proceedings preserves, as far as possible, what is good, and destroys only what is erroneous when the latter can be severed from the former, and destroys no more of the good than is necessary in the process of rectification." Lisbon v. Lyman, 49 N. H. 553, 583; Piper v. Railroad, 75 N. H. 435, 446, 75 Atl. 1041; McBride v. Huckins, 76 N. H. 206, 213, 81 Atl. 528; Doody v. Railroad 77 N. H. 161, 166, 89 Atl. 487, Ann. Cas. 1914C, 846. The error in the trial of the case related to the issue that Lizotte's employment brought him within the provisions of the Employers' Liability Statute. Hence this issue must be retired. The extent to which such trial necessarily involves other issues in the case is a question of fact which has been found by the trial court, without exception to the sufficiency of the evidence. The defendants in support of their motion rely upon the statute: "Whenever a new trial is granted, the action shall be brought forward on the docket of the court, and shall be tried as if no judgment had been rendered therein." P. S. c. 230, § 5. It does not appear that this case had been stricken from the docket of the superior court, or that the direction of the Supreme Court, of judgment for the defendant, had been entered thereon. But, assuming that this had been done, or that the order of the Supreme Court was equivalent to such entry, striking off the entry. of judgment will leave the case to be tried as if no judgment had been entered. The statute does not require the case to be tried as if no trial had been had, as the defendants apparently construe it, but leaves the case after the judgment is vacated to stand as if the error had been discovered before the judgment was ordered. Former order affirmed. Peaslee, J., did not sit. The others concurred. SUPREME COURT OF NEW JERSEY. DIXON ANDREWS.* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -“ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT." On August 15, 1916, the husband of the petitioner was a farm hand, whose particular employment on that day was to make a trip to Philadelphia with a truck wagon drawn by a team of mules. He left the farm between 5 and 6 o'clock in the afternoon, and at 2 o'clock the next morning was found dead sitting on the seat of the truck with his body crushed between the seat and the overhanging roof of a shed under which the mules were standing. From the circumstantial details in evidence, the judge of the pleas determined that the decedent's death was caused by an accident and that such accident arose out of and in the course of his employment. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) Certiorari to Court of Common Pleas, Burlington County. Action by Margaret H. Dixon against Clayton L. Andrews for compensation for the death of a deceased employee. From a judgment for plaintiff, defendant prosecutes certiorari. Affirmed. Argued November term, 1917, before Garrison, Bergen, and Black, JJ. Kaighn & Wolverton, of Camden, for prosecutor. GARRISON, J. The court was justified in finding that the injury of which the decedent died was not intentionally self-inflicted or the result of his intoxication. This left two hypotheses upon which to account for the manner in which such injury was caused, viz., that the decedent was asleep when the mules went under the low roof, or that he was negligent if he was awake. The latter hypothesis need not be considered, inasmuch as negligence is no bar to the recovery of compensation. The main contention is that the injury was not accidental if decedent was asleep; the argument being that sleep is not an accident. The act of going to sleep may or may not be an accident, depending upon whether or not it was designed; but the failure to wake up in time to avert a catastrophe is an accident in every sense of the word. If the going to sleep was not designed, it was accidental, if it was designed, it was negligence. In any event, the undesigned failure of the deceased to wake up until he was crushed between the seat and the low roof Decision rendered, March 4, 1918. 103 Atl. Rep. 410. Syllabus by * the Court. |