Clairmont v. Cilley

• Decision Date: 03 February 1931
• Citation: 153 A. 465
• Parties: CLAIRMONT v. CILLEY et al.
• Court: New Hampshire Supreme Court

153 A. 465

CLAIRMONT

v. CILLEY et al.

Supreme Court of New Hampshire. Strafford.

Feb. 3, 1931.

Transferred from Superior Court, Strafford County; Young, Judge.

Case, by Parnell J. Clairmont against George Cilley and others, for negligent injury to an employee under common-law liability. On a jury trial, the plaintiff received a verdict. The facts appear in the opinion. Transferred by Young, J., on exceptions to the denial of motions for a nonsuit and directed verdict, to evidence, and to the charge.

New trial awarded.

Conrad E. Snow and H. Thornton Lorimer, both of Rochester, for plaintiff.

Demond, Woodworth, Sulloway & Rogers and Jonathan Piper, all of Concord, for defendants.

ALLEN, J.

The plaintiff was injured in trigging a truck driven by the defendant Clifton, one of his employers, and stalled on the way up a hill. He was driving another truck behind Clifton's, and, as was the custom, had stopped at the foot of the hill to wait until Clifton's reached the top. When Clifton's truck stalled, he applied the brakes and called out to the plaintiff: "Trig the truck; I cannot hold it." The plaintiff stepped out of his truck, ran up the hill, picked up a stone, and, on reaching the stalled truck, undertook to place the stone against its rear right wheel. Each side of the truck overhung the wheels about a foot, and the plaintiff had to stoop and stretch his arm under the overhang to place the stone in position. While thus engaged, the truck suddenly started to move backwards, and his hand was caught beneath the stone as the truck struck against it.

The defendants concede the sufficiency of the evidence to show Clifton's negligence in assigning the plaintiff to a task of unnecessary danger, but say the risk was assumed.

In telling the plaintiff he could not hold the truck, Clifton informed him that it was likely to start in motion at any instant. Whatever caused the motor to stall and whatever the reason the truck could not be held, the danger of backward motion was brought to his attention, and he acted with knowledge of it. If the stationary position of the truck until he was Kurt gave him reason to think it would continue to hold, he was not entitled to further warning, because Clifton had no more reason to anticipate the starting than he did. The truck held for a time, and Clifton is not shown to have had reason to expect it would remain held any more than the plaintiff. It is true the plaintiff thought Clifton wished to have the truck trigged so it could be held on the hill while Clifton might crank and start the motor. But it remains that he was told it could be held only if he trigged it, and notice of the danger of its starting was not affected because of Clifton's probable action after it might be securely held. Clifton needed his help because the truck could not be held without it. That is what was told him, and he was given fair warning of what was likely to, and what did, happen.

Under the definition of assumption of risk as usually expressed, its rule would seem clearly applicable. The plaintiff was ignorant of ho fact material to his safety and of which he was entitled to be informed. His knowledge of the danger was equal to Clifton's.

But the plaintiff acted in an emergency under direct orders from his employer, and the emergency might be found caused by his employer's negligence. In the present state of the law, these conditions may show that the danger was not voluntarily encountered. If it was formerly the rule in master and servant cases that, when the servant acts in the face of known danger, his intentional conduct not physically compelled was always voluntary, the law does not now so regard it in cases where there is no reasonable opportunity to decide between the action taken and other action or nonaction. Such change as has taken place in the law is a change of the meaning of the rule and not of its definition. Voluntary assumption of risk of obvious dangers remains a defense. But freedom of choice and time to make it in taking action are required to give the action a voluntary character.

So far as the law has thus changed, the change may be ascribed to a number of reasons. The tendency of public thought to give more emphasis to social protection in its adjustment with the welfare of industrial enterprise is reflected, aside from legislation, in the common law as well. The growth and extension in the law of the duty of protection has tended to narrow the area of irresponsibility for injury incurred in the course of action intentionally taken. And considerations of natural and normal conduct show that force of circumstances may give such moral compulsion to action as to make it voluntary only under a strict and severe test. Allowance for other than physical coercion is a reasonable demand of justice.

The sense of duty to obey and the stress of emergency may so outweigh and displace other thought as to make its requirement arbitrary in taking action. If there is no time to weigh danger against safety in a normal and natural way, the law is not so rigid as not to recognize it. The fact that the servant is acting under direct orders of the master is not enough to excuse him from making a choice and assuming the risk if he continues his work. O'Hare v. Cocheco, etc., Co., 71 N. H. 104, 51 A. 257, 93 Am. St. Rep. 499. But if there is also an emergency which in a practical way shuts out the opportunity of choice, the risk is not voluntarily incurred, at least if the emergency is due to the master's fault.

It is the law here that one may not recover when as a volunteer he incurs danger to save the lives or property of others carelessly by them placed in peril. Clark v. Railroad, 78 N. H. 428, 430, 101 A. 795, L. R. A. 1918A, 518; Smith v. Company, 83 N. H. 439, 446, 144 A. 57, 783, 61 A. L. R. 1015. It is also the law as to one acting, not as a volunteer, but in the course of public duty. Id. But a practical and substantial difference exists between such cases and cases where the person helped owes the duty of protection to the one helping him. In the cases of the volunteer and the public servant, no duty of protection is owed them, because no relation exists out of which a duty may be imposed. They intervene without inducement from the party they protect. The situation is not the same in the case of the private servant acting in the line of duty. Owing the service, he is not a volunteer, and his assumption of risk is imposed, not because of nonrelationship with his employer, but as an incident of the relationship. Cases of intervention therefore do not help to solve the problem of defining the scope of assumption of risk in master and servant cases where the servant acts within his employment.

In the widest latitude of the rule, the servant assumes only known and appreciated risks. Even when by the terms of the service he is to act in emergencies as they may arise, if it goes too far to say that he does not thereby waive or lose his right to know about the danger of a particular emergency when it does arise, at least this is so when the emergency is brought about by the master's negligence and the servant is acting under his direct orders. Bound to use care for the servant's protection, the master is bound to be careful to avoid emergencies likely to expose the servant to danger. He may not carelessly create a situation of emergency, although the terms of service may call for the servant to act in it. Otherwise the rule of public policy against contracts of release from liability for future negligence would be invaded. The master's own breach of duty may perhaps not entitle the servant to disobey orders, but it does give him the right to leave the service. This right is more than theoretical, and the law seeks to give it practical value. Fair and reasonable opportunity for its exercise must appear, or the risk will not be held to be assumed. What constitutes such opportunity is of course a question of fact. If time enough is given the servant to weigh his own safety in the balance with his interest of employment, choice of action is afforded him. Otherwise he is not assuming the risk of obvious dangers in such cases, subject to the possible condition that he is acting in compliance with immediate orders.

This limitation on the extent of the doctrine has been announced in earlier cases. It is said in Olney v. Railroad, 71 N. H. 427, 431, 52 A. 1097, 1099: "When, after discovery of the defect, the servant has no opportunity to leave the service before the injury is received, there is no ground for the legal implication of such a contract [of assuming the risk]." The same principle is stated in Castonia v. Railroad, 78 N. H. 348, 351, 100 A. 601, and in Crugley v. Railway, 79 N. H. 276, 278, 108 A. 293. In Collins v. Car Co., 68 N. H. 196, 197, 38 A. 1047, 1048, the suggestion is made: "There was no emergency requiring him [the plaintiff] to expose himself to the danger." And in Young v. Railroad, 69 N. H. 356, 358, 41 A. 268, 269, attention is called to the fact that the plaintiff there was "under no compulsion, nor constrained by any sudden exigency."

In English v. Amidon, 72 N. H. 301, 56 A. 548, 549, the...