47 A.2d 574 | N.H. | 1946
Although the defendant had accepted the provisions of the Employer's Liability and Workmen's Compensation Act (R. L., c. 216) the plaintiff elected to bring an action for damages against it. The case is therefore governed by common-law principles. Ib., s. 4; Meersman v. Davison,
The plaintiff was in the defendant's employment three months when injured while driving cows from the retaining pens through an open five-foot runway leading to a slaughterhouse. One side of the runway was the side of a building and the other was the sides and gates of the retaining pens. The accident occurred as the last cow in the line suddenly turned completely around in a corner of the runway and, in returning to the retaining pens, struck the plaintiff with its right horn under the ribs which were protected by a hard rubber apron.
For twenty years the plaintiff had lived and worked on a farm and assisted in the slaughter of livestock. He was familiar with the characteristics of cattle, "that didn't go where you want to drive them." Here, as in Quimby v. Shattuck,
Although not necessary for the decision in this case it may be noted in passing, as bearing on the fairness of the trial, that the Presiding Justice did not grant the nonsuit summarily but only after argument of counsel and following repeated efforts to ascertain from the plaintiff what instructions could have been given by the defendant to have *116 avoided the accident. The effort was understandably unsuccessful but as has already been indicated "the doctrine of assumption of risk, with its corollaries, furnishes a complete answer to the plaintiff's claim." Fortier v. Company, supra, 494.
It may be argued with force that the common-law doctrine of assumption of risk is sometimes harsh and unjust and that the reasons for, and the conditions which gave rise to, the doctrine no longer apply or prevail. 35 Am. Jur. Master and Servant, ss. 294-296; Tiller v. Atlantic Coast Line R. Co.,
Judgment for the defendant.
MARBLE, C. J., was absent: the others concurred.