62 N.H. 247 | N.H. | 1882
The plaintiff claims to recover upon the ground of the defendants' negligence. He contends that Randlet was their agent, either by reason of his office as elder, or because the defendants are a partnership, or because he was authorized to act as agent by Baker, the defendants' trustee. The defendants deny that Randlet was their agent. They also deny that he was guilty of any negligence, but claim if there was negligence that it was the negligence of a fellow-servant in the course of a common employment.
It is unnecessary to inquire in what capacity Randlet was acting at the time of the accident. The most favorable view for the plaintiff is that which regards him as the general agent of the defendants. The question then is, whether there was any evidence of negligence to be submitted to the jury. The only evidence upon this point was the fact that the accident happened. The question is one of presumption in the law of evidence, and *249
the accident was not, in itself, evidence of negligence. The burden of proof is upon the plaintiff. It is not enough to prove that he has suffered injury by the act of the defendants, for the accident is not of that class where the maxim res ipsa loquitur applies, nor where the presumption is that the defendants did not discharge all the obligations resting upon them. Paine v. Grand Trunk Railway,
In Transportation Co. v. Downer, 11 Wall. 129, the facts were, — The plaintiffs' propeller got aground in the harbor of Chicago, and, the hold filling with water, the defendant's coffee in bags was damaged. The bill of lading exempted the plaintiffs from liability from losses occasioned by the dangers of navigation on the lakes and rivers. The defendant claimed and undertook to prove that the loss might have been prevented by the exercise of proper care and skill. It was held that the burden of establishing such negligence rested with the defendant (original plaintiff), and that it was error to instruct the jury that it was the duty of the plaintiffs (original defendants) to show that they had not been guilty of negligence. The court said, — "There was no presumption, from the simple fact of a loss occurring in this way, that there was any negligence on the part of the company. A presumption of negligence from the simple occurrence of an accident seldom arises, except where the accident proceeds from an act of such a character that, where due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, and for the management or construction of which he is responsible."
In the absence of any statute making railroad corporations liable for damages by fire communicated from their locomotives, the fact that the plaintiff's property has been injured by fire communicated in this way, it has been held in some jurisdictions, does not raise the presumption of negligence. Pierce Railroads 137, and cases cited. So the owner of land may burn the brush and wood thereon for the purpose of bringing the land into cultivation, and is not liable for injuries caused to his neighbors thereby without proof of some other act or default, or some other circumstance *250 making the act itself negligent. Shear. Red. Neg., s. 329, and cases cited.
In White v. Concord R. R.,
So negligence need not be shown where a nuisance is established, for no degree of care or diligence exempts him who sets up a nuisance whereby another is injured from the legal necessity to compensate him for the loss or injury he has caused him. Strawbridge v. City of Philadelphia, 2 Penny 419.
In The Nitro-Glycerine Case, 15 Wall. 524, 537, it is laid down, that where "the gist of the action is the negligence of the defendants, unless that be established they are not liable. The mere fact that injury has been caused is not sufficient to hold them. No one is responsible for injuries resulting from unavoidable accident whilst engaged in a lawful business. A party charging negligence as a ground of action must prove it. He must show that the defendant, by his act or by his omission, has violated some duty incumbent upon him which has caused the injury complained of." So, where the evidence is equally consistent with the absence as with the existence of negligence in the defendant, the plaintiff cannot recover. Smith v. Bank,
We do not see in the facts reported in this case any evidence tending to show negligence in Randlet. The wheel was raised eight or nine inches by means of a prop placed under the gearing on the floor above the wheel-pit, which Randlet undertook to keep in place with a bar. The plaintiff knew it was liable to slip unless kept in place, and with this knowledge undertook to fix the wheel-pit. He put his hands on the wheel causing it to turn a little, and it came down on his fingers. There is nothing to show that Randlet did not hold the prop as he undertook to do: on the other hand, the evidence tends to show that the falling of the wheel was caused by the plaintiff's placing his hands upon it, causing it to turn. A master is bound to take reasonable precautions to insure his servant's safety. But where the servant, knowing the dangerous character of the employment, is injured therein, I the master is not liable. Underhill Torts (Moak's ed.) 56, 57. A contract is implied, on the part of the servant, that he assumes the apparent risks as well as those generally incident and ordinarily and reasonably to be expected in the service. Fifield v. Northern R. R.,
The plaintiff was of sufficient age and intelligence to understand the nature of the risk to which he was exposed. He had full notice of the dangerous nature of the service which he undertook. It does not appear that any information as to the nature of the risk or danger of the service was withheld from him, or that the defendants were possessed of any information which he did not have as to the character of the service. If, under such circumstances, he chose to contract to do the work, then he assumed the risk which was within the scope of his employment, and the defendants were under no obligation to indemnify him against the consequences. Coombs v. New Bedford Cordage Co.,
The evidence which was rejected, if received, would not have changed the result. It was merely cumulative. There being no evidence of negligence in the defendants, the nonsuit was properly ordered.
Exceptions overruled.
BLODGETT, J., did not sit: the others concurred. *252