English v. Amidon

• Decision Date: 03 November 1902
• Citation: 72 N.H. 301,56 A. 548
• Parties: ENGLISH v. AMIDON et al.
• Court: New Hampshire Supreme Court

56 A. 548

72 N.H. 301

ENGLISH

v. AMIDON et al.

Supreme Court of New Hampshire. Hillsborough.

Nov. 3, 1902.

Exceptions from Superior Court; Peaslee, Judge.

Action on the case by Henry P. English against Frank Amidon and another for personal injuries. Defendants' motion for a nonsuit was granted, and plaintiff excepted. Exception sustained.

Shannon & Young, for plaintiff.

Jewell, Owen & Veazey and Streeter & Hollis, for defendants.

BINGHAM, J. It was the duty of the defendants, in the exercise of reasonable care and diligence, to provide and maintain a safe and suitable stairway by which the plaintiff, as their servant, could go to and from his place of work in the mill. Fifleld v. Railroad, 42 N. H. 225; Jaques v. Company, 66 N. H. 482, 22 Atl. 552, 13 L. R. A. 824; Fitzgerald v. Company, 155 Mass. 155, 29 N. E 464, 31 Am. St. Rep. 537; Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366. Inasmuch as the defendants operated their mill at night, it is claimed that the stairway should then have been lighted to render it reasonably safe. If the stairway was unsuitable for the use of the defendants' servants at night, because the plan of construction, taken in conjunction with the darkness, made it dangerous, it might be found to have been the defendants' duty, in the exercise of ordinary care, to make it reasonably safe, either by suitably lighting it or by remedying the construction; and this was a personal duty, from which they could not relieve themselves by delegating its performance to another.

The evidence was that the plaintiff and seven other spinners, after finishing their work at 9 o'clock in the evening, regularly came down the stairway from the third floor of the mill; that no other way was provided for them; that the stairway was winding, steep, narrow, and worn; that the treads of the stairs varied in width, being narrowest on the inside of the curve; and that the defendants had placed lamps, which were usually lighted at night, over the stairs. On the night in question, when the plaintiff and the other workmen had finished their labors, they put out the lights over their machines, as was their custom, and started to go out of the mill. On reaching the stairway they found it was dark, but proceeded to go down and out, the plaintiff going on the outside of the curve, where the treads of the stairs were widest, steadying himself with his hand against the wall, there being no railing on that side of the stairway. When part way down he slipped, fell, and was injured. Reasonable men could conclude from this evidence that the defendants required their servants to use this stairway at night; that its construction, in conjunction with the darkness, rendered its use dangerous; that the defendants themselves so regarded it; that their neglect to make the stairway safe for such use was the proximate cause of the plaintiff's injury; and that under the circumstances he was exercising due care in undertaking to use the stairway (the only means provided for leaving the mill) and in his conduct while using it.

Did the plaintiff voluntarily assume the risk of the defendants' negligence? "One does not voluntarily assume a risk, within the meaning of the rule that debars a recovery, when he merely knows there is some danger, without appreciating the danger." Mundle v. Company, 86 Me. 400, 405, 30 Atl. 16; Demars v. Company, 67 N. H. 404, 40 Atl. 902. One cannot be said, as a matter of law, to assume a risk voluntarily, though he knows the danger and appreciates the risk, if at the time he was acting "under such an exigency, or such an urgent call of duty, or such constraint of any kind, as in reference to the danger deprives his act of its voluntary character" (Mahoney v. Dore, supra); or if, after discovering the master's neglect, he "has no opportunity to leave the service before the injury is received" (Olney v. Railroad, 71 N. H. 427, 431, 52 Atl. 1097).

When the plaintiff went into the mill it was daylight. He knew that his work would not be finished before 9 o'clock that night, and that it was the custom of the defendants to then have the stairway lighted. He had the right to believe they would perform their duty on the night in question, and to rely thereon. He entered the mill, worked until 9 o'clock, and then went to the stairway to go out. On reaching it he found himself surrounded in darkness. Although be then knew the defendants had failed to perform their duty, yet in view of the fact that he then had no choice open to him, the only exit provided being over the dark stairway, and no opportunity to leave the defendants' service before his injury was received, it cannot be said, as a matter of law, that he voluntarily assumed the risk. It was for the jury to say whether the plaintiff, knowing the defendants' neglect of duty, fully appreciated the danger therefrom and voluntarily encountered it. Demars v. Company, supra; Whitcher v. Railroad, 70 N. H. 242, 46 Atl. 740; Dempsey v. Sawyer, 95 Me. 295, 49 Atl. 1035; Mahoney v. Dore, supra; ...