196 A. 627 | N.H. | 1938
The defendant contends that "The facts proved are equally consistent with a theory of the accident which would discharge the defendants as with one that would charge them" (Deschenes v. Railroad,
The defendant's third hypothesis to the effect that the plaintiff negligently selected a nut of improper size from the supply furnished him will be considered in connection with the issue of the plaintiff's due care.
The evidence in the record is sufficient to support a finding of liability on the part of the defendant on the ground of its negligent failure to provide the plaintiff with reasonably safe instrumentalities for the prosecution of his employment. "As to tools or materials, the master's duty is performed by furnishing a sufficient, suitable supply" (Hilton v. Railroad,
In its brief the defendant argues that the plaintiff disobeyed orders in going to the engineer rather than to the millwright to have the bolt repaired. This argument is not supported by the record. The evidence is that the plaintiff was told to take the bolt to the machine shop, that both the engineer and the millwright worked there, that the engineer was authorized to make repairs of this sort in the absence of the millwright, and that the latter was not present at the time when the plaintiff went to the machine shop to have the bolt repaired.
The defendant's further contentions are that the plaintiff assumed the risk of injuries such as the one he received and that he was guilty of contributory negligence as a matter of law. Neither of these requires acceptance.
When injuries result to a servant from a "peril which he understood, plus other factors of danger of which he was ignorant, the doctrine of assumption of risk will not bar a recovery." Krueger v. Company,
Little needs to be added to what has already been said to dispose of the defendant's contention that the plaintiff was guilty of contributory negligence as a matter of law. While it is true that the plaintiff himself selected a nut for use on the rethreaded bolt it does not follow that he was negligent in selecting the nut which he used. This nut appeared to him to fit properly and he was justifiably ignorant of the fact that this appearance was deceptive. It came from his supply, and whether this supply was provided by the defendant, as the plaintiff contends, or whether the plaintiff accumulated it by picking up such nuts as he could find around the premises, as the defendant asserts, is immaterial. Whatever its source, the only evidence is that his supply consisted entirely of nuts of standard size all of which were in good condition. There is nothing to indicate that one was any more suitable than another and nothing to show that the plaintiff either knew or ought to have known of the unsuitableness of the one which he chose.
The defendant's motion that the verdict be set aside does not require independent consideration because no reasons which have not already been considered are advanced in its support.
Judgment on the verdict.
All concurred. *249