74 A. 870 | N.H. | 1909
It is conceded that the plaintiff was in the exercise of due care at the time he received his injury. The controversy is as to the defendants' negligence. Upon this branch of the case two questions were submitted to the jury: "(1) Whether *401 the rules and regulations as to letting down the cars to the carrier were defective, (2) whether the defendants used ordinary care in employing the plaintiff's co-servant, Jacques." The motion for a nonsuit presents the inquiry whether an affirmative answer to the first question, or a negative answer to the second, could reasonably be found from the evidence.
It seems to us that there was evidence warranting answers favorable to the plaintiff on both propositions. As to the first, it could be found that the course of conduct pursued by Jacques in tapping the trigs with a pinch-bar, before the men had taken their positions at the brakes and given the signal to remove the trigs, had continued for such a length of time that the defendants knew of the custom and had adopted it as a method of conducting their business, and were negligent in so doing.
As to the second question, it may be said that the evidence discloses that the defendants failed to exercise ordinary care in employing and instructing Jacques as to his duties. At the time he was taken into the defendants' service, no inquiries were made with reference to his knowledge of the work he was to perform, and it was not shown that he had ever handled cars before, or done work similar to that he was called upon to do for the defendants. The only instructions he received were from a co-laborer; and in view of the hazards of the business, it could be found that those given afforded inadequate protection to the plaintiff and the other men engaged in this branch of the defendants' service. It was often difficult to remove the trigs from beneath the car wheels; and as the defendants knew or must be presumed to have known this, they could reasonably have anticipated that Jacques, who was unacquainted with the dangers of the business, might tap the trigs to see if they were tight, before the men were at the brakes, and inadvertently and unintentionally push them out, as he did on this occasion. This being the case, the defendants could be found to have been negligent, either in employing a man who was unacquainted with the work and its attendant dangers, or in not giving him adequate instructions as to what he should do and how he should do it, to protect his co-employees from unnecessary dangers.
Exceptions overruled.
All concurred. *402
