44 A. 750 | N.H. | 1896
The plaintiff seeks to recover damages for injuries alleged to have been received in the course of his service by one Duquette, the defendants' employee, by reason of an unblocked guard-rail. The sole ground of defence is that Duquette assumed the risk. The only question submitted to the jury was whether Duquette knew or ought to have known the guard-rail was unblocked. The only question which we have considered is whether there was evidence upon which the jury could properly find that Duquette did not know, or, in the exercise of due care, would not of necessity have known, the guard-rail was unblocked. The familiar principle of general acceptation as well as recent decision in this court, that the servant assumes the risk of injury from the perils ordinarily incident to his service and also from special hazards existing because of the particular means or method used by the master in the conduct of his business of which the servant is informed or which ordinary care would disclose to him, is not disputed. Fifield v. Railroad,
To establish his case, therefore, upon the general issue (negligence in the defendant being admitted or not contested), the plaintiff was bound to prove that the special danger causing the injury was not known to Duquette, and in the exercise of ordinary care by him would not have come to his knowledge (Hart v. Lockwood,
It is claimed, however, that whatever follows from the evidence as to Duquette's knowledge of the want of blocking generally, that it did not appear he had had opportunity to be informed as to this particular rail. But the construction of this guard-rail did not differ from other similar constructions in the yard. The risk he assumed was that of working in a yard where the switches and guard-rails were unblocked. Not having seen any blocking in the yard, he could not in the exercise of ordinary care have assumed, contrary to his entire experience during the *570 time of his employment, that this one was blocked, even if he had not had opportunity to become informed as to this particular spot. Had the yard generally contained blocked rails, or rails both blocked and unblocked, it might have been a question of fact whether in the exercise of ordinary care he could not have understood this rail was blocked; but no such question is presented by the case.
Verdict set aside; judgment for the defendants.
CHASE and WALLACE, JJ., did not sit: the others concurred.