111 A. 147 | N.H. | 1920
One of the positions upon which the plaintiff relies to establish the defendants' liability for his injury is that he should have received instructions when he entered their employ relative to the dangers incident to his employment.
The evidence justifies the conclusion that no instructions were given the plaintiff pertaining to the dangers of his work, and that he had no knowledge or experience as to them.
The plaintiff's principal work was to assist in moving steel plates from one place to another with a steam crane. As these plates were taken up by the crane they frequently slipped from the clamp and fell. It could be found that such work was dangerous, and that a man engaging in work of that character without experience or knowledge of its perils should have been carefully instructed relative thereto. Kasjeta v. Company,
The defendants contend that any instructions they were able to give the plaintiff would have been futile in preventing the accident, because it is impossible to tell how a falling plate will topple over after striking the ground. This contention cannot be sustained. It can be found from the evidence that the defendants knew or in the exercise of due care ought to have known that the plaintiff might be in danger even though he was not standing under the plates as they were being swung around by the steam crane, and that they should have instructed him to keep at a safe distance beyond the circle circumscribed by the plates as they were swung around into the plate-racks. The evidence tended to prove that at the time of the accident the plaintiff was not standing under the plate, but when it fell, one corner struck the ground, and the plate then swung around towards the plaintiff, toppled over and struck him; that the plaintiff was within the path of the plate in its journey from the car to the plate-rack, and if he had not been, he would not have been hit. Consequently it could be found that, if the plaintiff had been properly instructed to keep beyond the zone of danger created by the swinging boom, the accident would not have occurred.
The defendants have accepted the provisions of the employers' liability and workmen's compensation act. Laws 1911, c. 163. Therefore, as the plaintiff has elected to bring a common-law action *429
instead of seeking compensation under the act, he is subjected to all the common law defences except the burden of proving his freedom from contributory negligence, which has been placed upon the defendants. Laws 1915, c. 148. A defence open to the defendants in this action, is that of assumption of risk. The defendants seek to avail themselves of this defence, and assert that they are not liable because the accident was caused by a danger incident to the plaintiff's employment, and that he assumed the risk of it. The plaintiff assumed the risk of the dangers of his employment which he knew of and appreciated, or which would have been disclosed to him by the exercise of due care. Henderson v. Williams,
The question whether the plaintiff assumed the risk was properly submitted to the jury, unless the evidence in favor of the defendants upon that issue is so definite and certain that reasonable men must unanimously decide it adversely to the plaintiff. Minot v. Railroad,
Exceptions overruled.
PEASLEE, J., was absent: the others concurred. *431