Beardsell v. Tilton Sch.
| Decision Date | 21 June 1938 |
| Citation | 200 A. 783 |
| Parties | BEARDSELL v. TILTON SCHOOL (two cases). |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Belknap County; Burque, Judge.
Actions of case by Wallace A. Beardsell, by his mother and next friend, against the Tilton School, and by Priscilla A. Beardsell against the Tilton School for personal injuries sustained by Wallace A. Beardsell when he was run over by a truck belonging to the defendant, and for expenses incurred by Priscilla A. Beardsell by reason of the accident. The cases were tried together. Motions for nonsuits and directed verdicts were denied subject to the defendant's exceptions. Verdicts were for the plaintiffs, and the defendant saves exceptions. Judgments on the verdicts. Actions of case, for negligence; the first, to recover for personal injuries sustained by Wallace A. Beardsell, hereinafter called the plaintiff, on October 4, 1934, at Tilton, when he was run over by a truck belonging to the defendant; the other, brought by the plaintiff's mother to recover for expenses incurred by reason of the accident. The cases were tried together by jury, Sawyer, C. J., presiding, with verdicts for the plaintiffs. At the time he received his injuries the plaintiff was sixteen years old and was a student at Tilton School, which was then a private academy for boys.
Motions for nonsuits and directed verdicts were denied subject to the defendant's exceptions. Other exceptions were taken to the charge, to the refusal of the court to grant certain requests for instructions, and to the argument of plaintiff's counsel. A bill of exceptions was allowed by Burque, C. J. The facts are stated in the opinion.
Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (L. E. Wyman, of Manchester, orally), for plaintiff. Murchie, Murchie & Blandin, of Concord (Alexander Murchie, of Concord, orally), for defendant.
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The plaintiff had finished football practice on the afternoon of the accident and was attempting to enter a conveyance which the defendant had provided to transport students to and from the athletic field. Ordinarily a Concord truck, so called, was employed for this purpose, but on the day in question this truck was in the garage for repairs and a Ford dump truck was used in its place. The Concord truck was equipped with steps which could be attached to the rear. There were no steps that could be attached to the dump truck. The driver failed to let the tailboard down and the boys got in over the side of the truck by stepping on one of the rear wheels.
When either of the trucks was being loaded, the defendant required a member of the faculty to be present to take charge of the boys and to see that none of them jumped on when the driver was about to start. The usual method of informing the boys that no more were to get on was for the instructor in charge to blow a whistle. The football coach was the faculty member on duty that afternoon. He testified:
But the driver of the truck did not wait for the coach to arrive. Having parked the truck near the entrance to the field, he got down from the cab and stood at the rear while the boys were getting in. He then returned to the cab and started the truck, although he knew that no faculty member was there to exercise the required supervision. The coach, who was out on the athletic field, saw him as he was about to drive away and ran forward, shouting and blowing his whistle. Meanwhile the plaintiff had commenced to climb in over the left rear wheel. The truck started, however, before he had reached a position of safety. He fell to the ground, and the wheel ran over him. He testified that he "came to" on the way up to the school infirmary, that he could tell nothing about the circumstances under which the accident happened, and that the last thing he remembered was picking up his hood under the goal post and starting for the truck.
Counsel, invoking the rule of Wright v. Boston Railroad, 83 N.H. 136, 138, 139 A. 370, 56 A.L.R. 975, contend that no duty of protection devolved upon the defendant since the plaintiff must have fully understood the danger he encountered.
The difficulty with this argument lies in the assumption that the plaintiff knew when he stepped upon the wheel that the truck was likely to move. The plaintiff worked at the school in order to earn a part of his tuition, and the boys so employed were required to come up from the field on the first trip made by the truck. The Concord truck was large enough to carry all the boys who worked; the dump truck was not. It was the first time the dump truck had been used for that purpose that season, and there is no suggestion that any of the working boys had been told to wait for the second trip. While the plaintiff testified that it was the custom, when the truck was loaded with the proper number of boys, for the driver to start back for the school, he did not state that it was the custom for him to start back before the faculty member in charge of the boys had arrived.
Moreover, it is a reasonable inference that the truck was not overloaded when the driver started away from the field. A...
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