Knighton v. Cushman-Rankin Co.

119 A. 797, 80 N.H. 546, 1923 N.H. LEXIS 61

• Court: Supreme Court of New Hampshire
• Decided: February 6, 1923
• Status: Published

Opinion

Pabsons, C. J.

As the suit was at common law the plaintiff in this suit against his employer was bound in order to go to the jury to offer evidence that the risk of the injury which he suffered was not assumed by him. Bjork v. Company, 79 N. H. 402; Cassidy v. Corporation, 79 N. H. 427.

Being an experienced workman, the plaintiff assumed all the ordinary risks of the business and the special hazards arising from the way the business was carried on of which he knew or which ordinary care would have informed him. To recover he was bound to prove that his injury was caused by a special danger of which he did not know and which in the exercise of ordinary care would not have come to his knowledge. Burnham v. Railroad, 68 N. H. 567.

The defendant was engaged in the manufacture of leather-board. The plaintiff had been employed in the mill seventeen years and had acted as superintendent eight or nine years and was so acting at the time he was injured. Ele fainted while standing on a platform or deck, hanging sheets of leather-board to dry, and fell to the floor below. He complains of the heat on the drying platform and because the defendant did not warn him he might faint and fall and because of the absence of fans. But in view of the plaintiff’s experience in the business of which he had charge at the time of his injury, it is difficult to see how on any evidence which could be produced it could be found he did not know and understand all the perils of which he now complains.

The verdict of the jury has, however, cured the error in denying a nonsuit, if there was one. The exceptions to argument are unimportant. Counsel did not introduce any facts not in evidence. If he had such purpose in mind, it was checked by the prompt objection of the plaintiff, and counsel skilfully avoided the pit into which possibly he might otherwise have fallen. If the reference to the defendant as a “little company” was intended as a prelude to an appeal to the prejudices of the jury, the appeal was not made.

All that was said was within the evidence and the finding of the court disposes of the claim that the jury may have based the verdict upon inferences that they might not legally draw. Stowe v. Payne, ante, 331, 334.

Plaintiff’s exceptions overruled.

Young, J., was absent: the others concurred.