The defendant had accepted the employers' liability act, Laws 1911, c. 163, and the action is at common law. The defendant concedes that the plaintiff was without fault, but contends that it conclusively appears from the plaintiff's evidence that the accident was due solely to the negligence of her fellow-servants. This position is predicated upon the claim that during the temporary use of the stairway for the removal of waste, it had performed the master's full duty by providing by rule for adequate protection against danger, and that the plaintiff's failure to receive notice and her resulting injury were due to the non-observance of such rules by her fellow-servants, for which it is not responsible. More specifically, it is the defendant's position that the instructions to the operatives, together with the practice that had grown up under them, amounted to a rule prescribed by the defendant that the work of moving the bags should never begin until one o'clock and should never proceed unless there was a guard at the bottom of the stairs. It claims that the fault was that of Daneault in commencing the work too early or in failing first to ascertain that his partner was at the foot of the stairs, or else it was that of Poirier in not
being at his post and keeping the plaintiff off the stairs; that in either case, the sole cause of the plaintiff's injury was the negligence of one or both of these operatives in their common employment with the plaintiff.
If this were a case where the master could divest himself of responsibility by delegating the performance of the act of warning to another through the establishment of a rule or method of operation (McLaine v. Company, 71 N.H. 294, 297; Hill v. Railroad, 72 N.H. 518, 520; Smith v. Railroad, 73 N.H. 325, 327; Deshaies v. Company, 80 N.H. 351, 353; see Parmaleau v. Company, 75 N.H. 69), the defendant's motions for a nonsuit and a directed verdict must nevertheless have been denied, since there is evidence upon which there might have been a difference of opinion as to whether the rule adopted provided for a reasonably safe method of operation. The test to determine this question is to be found in answer to the inquiry whether the rule, as promulgated or customarily practiced, was such a rule as the ordinarily prudent man would have adopted. The presumption that all necessary rules were prescribed (Hill v. Railroad,72 N.H. 518, 519; Manning v. Manchester Mills, 70 N.H. 582, 583; Smith v. Railroad, 73 N.H. 325, 327), does not apply here, since the evidence purports to disclose all the rules in force. Reasonable men might have found from the evidence that the exercise of ordinary care under the circumstances (1) would have required a rule that the operative engaged in throwing down the bags, as an added precaution before beginning the work, should close and fasten the entry door through which the plaintiff and others customarily approached the stairway, or (2) would have called for the installation of a more dependable means of communication between the operatives by means of bells and lights and a rule regulating their use. Reasonable men might have concluded that in putting a winding stairway, ostensibly designed solely for human travel, to a dangerous use like the transmission of freight by the force of gravity, the ordinary man would have promulgated a notice to all operatives habitually using the stairway of the fact that the stairway would be subject to the dangerous use from one to two o'clock each day except Saturdays. Neither the fact that no one had been hurt before nor the fact that the best devised means might sometimes fail to protect, is an answer to the conclusion that reasonable men might find from the evidence that the ordinarily prudent man would have promulgated the notice or provided by rule for the closing of the door or for the use of appropriate signals. There was evidence from which it could be found
that the accident would not have happened but for the defendant's failure in one or more of these particulars. Whether such failure was a proximate cause of the plaintiff's injury was a question of fact for the jury. Hamel v. Company, 73 N.H. 386, 389; Vaisbord v. Company, 74 N.H. 470, 474; Ela v. Company, 71 N.H. 1, 3.
However, the duty which was imposed upon Poirier and Daneault to guard the crooked stairway during the extraordinary and dangerous use to which it was being put at the time of the accident was not a servant's duty, merely incidental to moving the bags, but was a part of the non-delegable duty of the master to furnish a safe instrumentality for the passage of its servants to and from their work. The confusion, if any, arises from failing clearly to distinguish between the nature of the concurrent acts of moving the bags and guarding the stairway. "A servant of whatever rank, charged with the performance of the master's duty towards his servants, is, as to the discharge of that duty, a vice-principal, for whose acts and neglects the master is responsible, because he has invested him with the responsibility of doing that which the master is bound to have carefully performed." Jaques v. Company, 66 N.H. 482, 484, 485; Olney v. Railroad,71 N.H. 427, 430. "The test whether the individual employees concerned were fellow-servants is not found in the fact that they were engaged in a common employment under the same general control and paid by the same principal, but is whether the negligent servant, in the act or omission complained of, represented the master in the performance of any duty owed by the master to the servant injured. The responsibility of the master is determined by the nature of the act in question, and not by a difference in rank or grade of service between particular servants." McLaine v. Company, supra, 294, 295. "The responsibility of the master is not determined by a difference in rank between the servant injured and the one in fault, or by the fact that the servant guilty of negligence is foreman or in control of others, but upon the nature of the act complained of; whether it is an act of service, or an attempted performance of a non-delegable duty of the master. Wallace v. Railroad, 72 N.H. 504; Galvin v. Pierce, 72 N.H. 79; McLaine v. Company,71 N.H. 294. The principle involved in determining whether the act in question is one of service or mastership is not `derived from exact or ingenious definitions of the words "place," "tools," or "appliances," however convenient and useful they may be in a particular case, but from considerations of the requirements of ordinary and reasonable care on the part of both the employer
and the employee. If as a matter of fact a particular course of conduct on the part of the master toward his servant is unreasonable when measured by the conduct of men in general engaged in similar occupations, he cannot shield himself as a matter of law from the consequences of such conduct by a resort to verbal distinctions, which oftener serve to obscure than to elucidate legal principles.'" Hilton v. Railroad, 73 N.H. 116, 119. "The question is one as to the character of the order or act, whether it is one which is given or performed as an order or act of the master in his character as such, or only as an order or act delegated by the master to another and performed by such other as an employee." Galvin v. Pierce, supra, 83.
It was the non-delegable duty of the defendant in the exercise of reasonable care and diligence to provide and maintain a safe and suitable stairway by which the plaintiff as its servant could go to and from her place of work in the mill. English v. Amidon, 72 N.H. 301, 303. The stairway appears to have been designed solely for the passage of persons. To transform it into a freight-chute was to put it to a use inconsistent with its ostensible design and manifestly dangerous to anyone attempting to use it for passage at the same time. It could be found that the contour of the stairway rendered such inconsistent use a concealed danger to one ascending the stairs without notice. If so found, the defendant had no more right, without adequate notice to the plaintiff, temporarily to put the stairway to such a dangerous use than it had to remove it without notice. If it did either, it owed the plaintiff the non-delegable duty to guard the entrance during such use, or such absence of, the stairway. Such duty was personal to the master. It was as much the master's duty to keep the stairway, while in use for passage by its servants, free from the flying bags of waste, the approach of which was concealed to them by the contour of the stairway, as it was to keep a defective stairway free from darkness. English v. Amidon, supra, 301. The transmission of the bags was the duty of the servant; the guarding of the stairway against the concealed danger in order to maintain its safety as an instrumentality was the duty of the master. Poirier and Daneault, in guarding the stairway, were therefore entrusted with the master's duty, and their negligence in its performance was the master's negligence. Their negligence is admitted. The defendant's motions for a nonsuit and a directed verdict were properly denied.
Defendant's foreman and witness had testified that the bags had formerly been taken out upon an elevator, and explained why the
system of taking the bags down by the stairway had been substituted. Upon cross-examination, he was permitted to state, subject to the defendant's exceptions, that the defendant still usually did such work by means of elevators and that so far as he knew the use of this stairway for such purpose was the only exception. The inquiry was within the legitimate latitude of cross-examination.
Upon cross-examination by defendant's counsel, Poirier, the plaintiff's witness, had testified that if any employee desiring to ascend the stairs came in after one o'clock, he would tell Daneault not to send any bags down. Upon redirect examination by the plaintiff's counsel, the witness, subject to the defendant's exception, was permitted to state that in such cases, he would sometimes have the employee wait until all the bags were down and sometimes let him go up, first telling Daneault not to send down any bags. The defendant's system of guarding the stairway was an issue. The evidence was admissible both as explaining a detail of the system and as correcting a partial or erroneous statement brought out by the defendant's counsel.
The defendant excepted to language of the charge used in the course of an historical statement of the development of common-law principles, namely, "Respondeat superior . . . means that the superior or the employer must be responsible for the acts of his agents, and that is a principle which lies at the basis of the plaintiff's case here." This expression was preceded by the statement that the rule was a qualification of the fundamental principle of the common law that every man is responsible for his own but not for another's conduct, and was followed by the further statement that the application of the rule respondeat superior had been later limited by the establishment of the fellow-servant doctrine which the court proceeded to state and explain. While statements of the evolution of this doctrine from the primitive common law may not have been very helpful to the jury, the statement appears to be neither erroneous nor prejudicial.
The defendant's exceptions to the denial of requested instructions, so far as not given, and its further exceptions to the charge, appear to be disposed of by the conclusions hereinbefore reached. The remaining exceptions seem not to be insisted upon.
Exceptions overruled.
PEASLEE, J., did not sit: the others concurred.