57 A. 924 | N.H. | 1904
It was the duty of the defendants, for the protection of their employees, to conduct their business in a reasonable manner, measured by the conduct of men in general engaged in like occupations. English v. Amido, ante, pp. 301, 303, 304. If men of ordinary prudence, engaged as the defendants were in the business of repairing cars, would provide by rule as to the movement by hand of cars over tracks upon which other cars were generally or occasionally repaired, or as to the repair of cars upon such tracks, the defendants' failure to so provide would be evidence of negligence. Relying upon the absence of rules as the basis of the charge of negligence, the burden was upon the plaintiff to prove affirmatively the want of such rules, since the presumption is that such rules as were necessary were prescribed. Manning v. Manchester Mills,
If a rule would have protected the servant, if observed, his injury may be due either to the want of the rule, — negligence of the master, — or to its non-observance, — negligence of the plaintiff or his fellow-servants. Hence, proof of an injury preventable by a different course of conduct is not of itself evidence of the master's negligence. Rose v. Railroad, supra; Deschenes v. Railroad,
It is found in the case that the car, the movement of which resulted in the plaintiff's injury, was pushed out by hand upon the track where the plaintiff was at work, "in the ordinary course of business," and that the order was given to push the car out "in the way it was done." From these expressions, it is argued that the customary method of moving the cars out upon the track in question was without looking to see if any one was at work on the track; and the rule requiring employees to observe if any one was at work upon the track before moving cars upon it (which it appears to be claimed should have been prescribed), if prescribed, was so generally violated that the defendants might be found guilty of negligence upon the grounds before stated, — in substance, because they failed to exercise reasonable supervision. Such construction of the case would be strained and is not reasonably warranted by the language of the record, in view of the apparent fact that in the superior court attention was not directed to the question of rules or system. But if the plaintiff is correct in his construction of the case, the conclusion is erroneous, because it is based upon the false assumption that the only rule which could have protected the plaintiff would have been one regulating the conduct of those moving the car. A rule requiring a signal of some sort to be erected, when work was being done upon cars on a track upon which other cars were liable to be moved, would, if observed, have protected the plaintiff, and would have constituted a performance of the defendants' rule-making duty. Corcoran v. Railroad,
It may be that the plaintiff's whole difficulty arises from the fact that the evidence at the trial was not addressed to the propositions now relied upon. If there be evidence tending to sustain the claims now made, which through accident, mistake, or misfortune was not presented, the superior court will determine whether justice requires another trial. This court can consider only the legal questions presented by the record. In that there is no error.
Exception overruled.
WALKER, J., did not sit: the others concurred.