Bolduc v. Crain

• Decision Date: 05 June 1962
• Citation: 104 N.H. 163,181 A.2d 641
• Parties: Charles E. BOLDUC v. Robert M. CRAIN.
• Court: New Hampshire Supreme Court

Page 641

181 A.2d 641

104 N.H. 163

Charles E. BOLDUC v. Robert M. CRAIN.

Supreme Court of New Hampshire.

Argued May 1, 1962.

Decided June 5, 1962.

Burns, Bryant & Hinchey, Donald R. Bryant, Dover, for plaintiff.

Howard B. Lane, Keene, for defendant Crain.

DUNCAN, Justice.

The defendant asserts that his motions for a nonsuit and a directed verdict were erroneously denied because there was no evidence from which it could be found that the defendant's driver DeGrasse was negligent and because 'Bolduc assumed the risk of being injured by a dangerous team when he voluntarily entered the pulling ring.'

There was evidence from which the following facts could be found. As one of its attractions the Deerfield Fair conducted horse-pulling contests in which the winner was determined according to the weight which a pair of horses could pull on a wooden drag or boat, for a six-foot distance in three attempts, without stepping outside of an area marked off by two twenty-four-foot poles set in the ground on either side of the team. These poles were twelve feet apart where the rear of the drag was set at the commencement of the pull, and twenty feet apart at the opposite end. The weight on the drag consisted of stones by which the weight was gradually increased and at the time of this accident the load weighed from 7,500 to 8,000 pounds. Teams were hitched to the drag by means of a 'spreader' which was a metal rod with a hole or eye at the center and whippletrees at either end, behind each horse. To attach the spreader to the drag, two 'holders,' holding either end of the spreader by means of straps, would drop the eye of the spreader over a hook on the front of the drag. The evidence indicated that pulling horses are trained to pull as soon as the spreader is placed on the hook; and that when the load on the drag is heavy, in order to start it it is the practice to pull the drag to the left if it is pointing to the right, and vice versa.

A team of horses owned by the defendant and driven by his employee DeGrasse was entered in the 3,400 class, so-called, for horses not over that weight. The team was scheduled to enter the ring to be hitched to the drag for the final pull of the contest in progress. When the announcer called for it to enter the ring one of two boys who had been holding the spreader had gone to the horse barn with other horses which had just finished competition. As DeGrasse entered the ring with the defendant's horses, the plaintiff stood nearby; and it could be found that in accordance with custom DeGrasse asked him to take the spreader on the right or off side of the horses, and the plaintiff did so.

In accordance with practice the horses then circled the ring and were backed toward the drag by DeGrasse. The spreader was dropped onto the hook, and the horses immediately lunged to the right 'at a forty-five degree angle' and the drag was lifted onto the plaintiff's left foot before he could move away. In order to extricate his foot it was necessary to move the drag off, and the foot was seriously injured.

There was evidence that the defendant's horses were what is known as a 'hot team' or a 'lively team,' and there was also evidence that the team habitually pulled toward the right. It could be found that the plaintiff was ignorant both of the condition of the team at the time, and of its habit of pulling toward the right, and that because the drag was pointing to the right when the spreader was attached a person unfamiliar with the team would expect it to pull to the left in accordance with the usual practice.

The plaintiff Bolduc was sixty-three years of age, with considerable experience in the management of horses and mules, and was generally familiar with the conduct of pulling contests at this particular fair. It could be found that he had not seen the defendant's team of horses participating in the pulling contest in progress before he was asked to hold the spreader. It could also be found that the team in question was 'hot' or 'lively' to such an extent that it was 'dangerous'; that the plaintiff was given no warning of this, or of the animals' tendency to pull to the right, or the driver's intention to drive them to the right on this particular pull. There was also testimony from which it could be found that custom and reasonable care required that under such circumstances a driver should warn a 'holder' who had just entered the contest of the condition of the horses and of his purpose to drive them to the right.

The defendant maintains that his driver was under no duty to warn or instruct the plaintiff because of the plaintiff's long experience in 'horse-pulling contests,' and that the defendant was entitled to a directed verdict, or if not that the jury should have been instructed in accordance with the following request: '6. In view of Mr. Bolduc's long experience in horse pulling contests, the defendant was under no duty to warn or instruct him as to the performance of his duties in handling the spreader or of the dangers incident thereto.'

The defendant likewise maintains that the following requests for instructions were erroneously denied: '7. If you find that Bolduc knew or should have known of the dangers connected with the handling of the spreader, then you cannot find the defendant negligent for failing to warn him of such danger of which he knew or should have known.' '2. If you find that Bolduc was familiar with the dangers of holding a spreader, then Bolduc is presumed by law to have assumed the risk of being injured if he holds the spreader and he cannot recover for his injuries.'

In support of all of his exceptions, ...