Dziedzie v. Newmarket Mfg. Co.

• Decision Date: 07 April 1925
• Citation: 129 A. 271
• Parties: DZIEDZIE v. NEWMARKET MFG. CO.
• Court: New Hampshire Supreme Court

129 A. 271

DZIEDZIE

v. NEWMARKET MFG. CO.

Supreme Court of New Hampshire. Rockingham.

April 7, 1925.

Transferred from Superior Court, Rockingham County; Kivel, Judge.

Case for negligence for personal injuries by Antonio Dziedzie against the Newmarket Manufacturing Company. Transferred on plaintiff's exceptions to a nonsuit and exclusion of evidence. Exception to nonsuit sustained, and exception to evidence overruled.

William H. Sleeper, of Exeter, for plaintiff.

Lucier & Lucier and A. J. Lucier, all of Nashua, for defendant.

ALLEN, J. There was evidence of the plaintiff's deficient intelligence. Aside from whatever confirming evidence his presence before the jury gave, the testimony that he was slow, and it was hard for him to think, understand, and learn, was sufficient to support a finding that he had "little understanding and judgment." The persuading effect of the evidence, and to what extent it showed him thus deficient, was so clearly for the jury's consideration that discussion of it appears unnecessary. If the lack of average intelligence were found, the evidence of the plaintiff's employment by the defendant for over two years as an unskilled laborer without making progress warranted an inference that the defendant knew of it.

If deficient intelligence to the defendant's knowledge be found as a fact, the duty to use due care for the plaintiff's safety imposed consideration of the fact. While the situation contained no danger connected with his injury which was not obvious to one of average intelligence, and while to such a person there was therefore no duty of instruction or warning (Dube v. Gay, 69 N. H. 670, 46 A. 1049; Gaudette v. Railroad, 74 N. H. 597, 64 A. 667; Ahem v. Amoskeag Mfg. Co., 75 N. H. 99, 71 A. 213, 21 L. R. A. (N. S.) 89; Cronin v. Columbian Mfg. Co., 75 N. H. 319, 74 A. 180, 29 L. R. A. [N. S.] 111), to one below such intelligence, the danger might make it negligent either not to warn and instruct him about it (Disalets v. International Paper Co., 74 N. H. 440, 69 A. 263; Driscoll v. Rolfe, 75 N. H. 586, 71 A. 379; Paquette v. Conn. Valley Lumber Co., 79 N. H. 288, 109 A. 836; Graham v. Weber, 79 N. H. 393, 109 A. 717), or to let him do the work at all (Proulx v. Goodrich, 77 N. H. 297, 298, 91 A. 180; Smith v. American Woolen Co., 77 N. H. 391, 92 A. 334; Richardson v. Adams, 77 N. H. 571, 94 A. 967).

The master's duty of due care to give special protection to a servant mentally deficient arises from the latter's failure without fault to appreciate dangers ordinarily obvious. Lack of average intelligence is an evidentiary item in showing if and how far the danger was understood. A danger may be concealed by the obscurity of intelligence to perceive it as well as by its own inherent obscurity. To such an intelligence a danger otherwise obvious may be a hidden one.

The place where the plaintiff was put to work was dangerous according to the extent and degree of his mental deficiency. The danger arose from a combination of the obvious danger in the physical situation of the roof with the snow and ice on it, and the plaintiff's condition, which made it a place of concealed danger for him. If his condition was such that a careful employer would have given directions to avoid his exposure to such a danger, then the duty to give them arose. While he knew that he was likely to be hurt if the ice fell and hit him, he did not necessarily know that it was likely to fall or that if it did he was likely to be hurt where and as he stood. From the evidence, the jury might find the danger was neither known nor obvious to him, and that he was not in fault for being ignorant of it.

Whether the plaintiff was struck by the fulling ice or whether he lost his balance when it fell is not a test of the defendant's liability. If he lost his balance and fell without the ice striking him, the conclusion that he fell in that manner by reason of the falling ice, rather than independently and regardless of it, is one, if not the only one, fairly to be drawn.

The evidence of the defendant's negligence and its causal connection with the injury is sufficiently adequate. Since the negligence depends on the plaintiff's ignorance of the danger, it follows that there is also sufficient evidence that he did not assume its risk.

The removal of the snow and ice from the roof was the foreman's work, and he took the plaintiff with him to help do the work under his charge and direction. It is urged that the negligence on which recovery is sought was of a fellow servant.

The negligence of servants whose work is to maintain conditions of safety is not within the application of the fellow-servant rule. Jaques v. Great Falls Mfg. Co., 66 N. H. 482, 22 A. 552, 13 L. R....