Aldrich v. Monroe

60 N.H. 118

Opinion

Allen, J.

The question whether the plaintiff at the time of the accident was in the exercise of ordinary care, was a question of the care of men of ordinary prudence, that is, of men in general. Tucker v. Henniker, 41 N. H. 317. Conduct in the management of teams, of a character so uniform as to become usage, would include the average conduct of mankind in that particular within the locality where the usage prevailed, and a departure from such usage, when known, would be evidence of a want of ordinary care. If the plaintiff knew the prevailing usage, as to chaining wheels upon a loaded wagon in descending the hill, when he met with the injury (residing or doing business in that vicinity he was presumed to know), a failure on his part to adopt the usage was evidence of negligence. The usage being material, it was competent to show it, and the exclusion of evidence upon that point was error.

Referee’s report set aside.

Stanley, J., did not sit: the others concurred.