13 A.2d 153 | N.H. | 1940
The defendant does not venture to deny that it was findably at fault, nor could such a suggestion be seriously entertained in view of the rules that, (1) "The master is bound . . . to provide such reasonable rules and regulations as will enable the servants to do the work in safety," and (2) "If ordinary care requires that a warning of dangers arising from the work should from time to time be given to his servants as the work progresses, it is the master's duty to provide for such a warning." McLaine v. Company,
The answer to the argument that the plaintiff was guilty of contributory negligence as a matter of law is to be found in the rule that contributory negligence is usually negatived by evidence that the *26 servant acted under a direct order (4 Labatt, Master Servant, (2d ed.), s. 1363) coupled with the fact that the plaintiff was a minor whose appreciation of the various factors of danger which his conduct involved was not conclusively established, as hereinafter indicated.
The defendant appears to rely chiefly upon the doctrine of assumption of risk to sustain the order of nonsuit. It is argued that the plaintiff "knew the facts and physical conditions and reasonable men could not find that he did not appreciate the danger," citing Cronin v. Company,
As a result of the foregoing conclusions, it follows that there must be a
New trial.
All concurred. *27