Slack v. Carter

56 A. 316, 72 N.H. 267, 1903 N.H. LEXIS 62

• Court: Supreme Court of New Hampshire
• Decided: October 8, 1903
• Status: Published

Opinion

Bemick, J.

The evidence tended to show that the defendants neglected to provide the plaintiff a reasonably safe place and reasonably safe appliances. The only question raised by the record is whether it so clearly appears that the risk of the unsafe place and appliances negligently provided by the defendants was, or ought to have been, known'and appreciated by the plaintiff, and that he voluntarily assumed it, that reasonable men could not have found to the contrary.

While there may be cases where the defect and danger are so palpable and the circumstances are of such character as to render unreasonable any conclusion other than that the risk was known, appreciated, and voluntarily assumed (Collins v. Car Co., 68 N. H. 196), in the present case, in view of the age of the plaintiff, the complexity of the machinery, the confusion of the work, the failure of the defendants to instruct the plaintiff as to the dangers, the assurance of safety involved in the defendants’ sufferance of their other servants to act as the plaintiff did under his observation, the presumption in behalf of the plaintiff that the master had performed his duty, the fact that the gears'upon all the other machines with which the plaintiff had to do were covered (Burnham v. Railroad, 68 N. H. 567, 570), the inferences possible to be drawn from the appearance of the place and of' the machinery at rest and in motion, and finally, the plaintiff’s own statement that he did not know of any reason why he should not step back of the machine in the particular way he did when injured, we cannot say as a matter of law that the superior court erred in overruling the defendants’ motion for nonsuit and sub mitting the question of assumed risk to the jury. Demars v. Company, 67 N. H. 404; Lintott v. Company, 69 N. H. 628, 632; Whitcher v. Railroad, 70 N. H. 242; Bennett v. Warren, 70 N. H. 564; Edwards v. Tilton Mills, 70 N. H. 574; Sanders v. Company, 70 N. H. 624; Thompson v. Bartlett, 71 N. H. 174; Stone v. Boscawen Mills, 71 N. H. 288; Lapelle v. Company, 71 N. H. 346, 349.

Exception overruled.

All concurred.