51 A. 633 | N.H. | 1901
For present purposes it must be assumed that it was the legal duty of the defendants to prepare and move the staging for the plaintiff, and in such manner that it would be and remain in a reasonably safe condition; that notwithstanding this duty, the defendants so moved the staging, just previous to the plaintiff's injury that one of the planks was insecurely placed; that the plaintiff had no actual knowledge that the plank was misplaced, or of the danger arising from it, and had no opportunity for knowledge other than that afforded by the circumstances attending his approach to the danger at the very time of his injury; that during this brief interval his attention was preoccupied with his own peculiar duties as the defendants' servant.
Upon these facts we are asked to say, as a matter of law, that the plaintiff ought to have discovered the danger occasioned by the misplaced plank, and avoided it. It is indeed settled, at least *176
in this jurisdiction, that actual knowledge of the danger is not necessary to bar recovery. The rule in this respect was clearly stated by Carpenter, J., in Nashua Iron and Steel Co. v. Railroad,
Having in mind that it was the defendants' duty to make and keep the staging reasonably safe for the plaintiff; that the plaintiff had the right to presume that this duty had been performed by the defendants; that the plaintiff had no actual knowledge of the defendants' default in respect to the misplaced plank, and no opportunity for knowledge other than that afforded by the immediate circumstances and occasion of the injury, and while he was preoccupied with his own duties, the court would hesitate to say, *177 even were it the court's province, that the plaintiff ought in the exercise of ordinary care to have discovered the danger. Much less can the court say that it is so clear that the plaintiff ought to have discovered the danger that impartial men, acting as jurors, could not reasonably have found otherwise.
Whether the plaintiff ought to have discovered the danger was, under the circumstances, a question for the jury. The refusal of the court to direct a verdict for the defendants was therefore properly denied. This conclusion is as well supported by authority as it is sound in reason. Kane v. Railway,
Exception overruled.
All concurred.