23 A. 365 | N.H. | 1890
A servant assumes the perils incident to his service of which he is informed, or which ordinary care would disclose to him. Fifield v. Railroad,
The evidence tends to show — and at the trial it was apparently not disputed — that the failure of a charge to explode was not uncommon, and might happen from various causes, as from a wetting of the fuse either before or after it was put in position, from a defect in its manufacture, from its severance in the process of tamping, or by reason of its not extending to the charge; that from whatever cause the failure happened, the usual and ordinary course of proceeding was to extract the charge in the method pursued by the plaintiff, with which he was familiar.
The plaintiff did not know the cause of the non-explosion; — it might be, so far as he knew, a cut of the fuse in tamping, or a defect in its manufacture, either of which would render the removal of the charge as dangerous, and require as much care in extracting it, as if the cause were known to be a wet fuse. He stands no better than he would if the defendant had personally prepared the charge with wet fuse, and on its failure to explode had directed the plaintiff to drill it out without informing him that the fuse was wet.
There was no evidence tending to show that wet fuse is objectionable for any reason except that it may fail to ignite the charge; that it is more dangerous to extract a charge which from wetness of the fuse has failed to explode, than one which has failed by reason of a severance of the fuse in tamping, or a defect in its manufacture; or that knowledge of the wetness would in the slightest degree affect the method of extraction required when the cause of the non-explosion is unknown. If the fact was immaterial; if the plaintiff's action could not be affected by his knowledge or ignorance of it; if ordinary care required the charge to be extracted in precisely the same manner whether the cause of its failure to explode was known to be a wet fuse or was unknown, — the plaintiff's injury is not attributable to negligence of the *414 defendant. He was not in fault for not communicating a fact which was immaterial to the plaintiff's safety.
There being no evidence tending to show that the plaintiff was ignorant of any fact material to his safety, the verdict must be set aside.
Exceptions sustained.
BLODGETT, J., did not sit: the others concurred.