Hook v. Consolidation Coal Co.

• Decision Date: 05 May 1925
• Citation: 129 A. 490
• Parties: HOOK v. CONSOLIDATION COAL CO.
• Court: New Hampshire Supreme Court

129 A. 490

HOOK

v. CONSOLIDATION COAL CO.

Supreme Court of New Hampshire. Rockingham.

May 5, 1925.

Action by John H. Hook against the Consolidation Coal Company. Verdict for plaintiff. Motions for nonsuit and directed verdict were denied, and defendant excepts. To withdrawal of certain issues from jury, plaintiff excepts. Defendant's exception sustained, and plaintiff's exceptions overruled.

Action at common law to recover for personal injuries sustained by the plaintiff while in the defendant's employ. Trial by jury, and verdict for the plaintiff. Motions for a nonsuit and directed verdict were denied by Allen, J., subject to the defendant's exception.

At the time of the accident the plaintiff, a common laborer, was engaged with other workmen in moving six or eight cars loaded with coal by means of a stationary engine and a cable running over a drum. The cable was attached by the workmen to a bolted chain in the end of the rear car. This chain comprised one or two links, and a hook by which it could be fastened to a similar device on other cars, and thus afford a temporary connection in case the coupling should give way. When the power was applied to the cable, the eyebolt, which held the chain, broke, causing the cable to swing around the end of the car and hit the plaintiff.

The only issue of negligence submitted to the jury was that of undertaking to move so many cars with the cable at once. The plaintiff complained that he "was not given time to reach a place of safety," and "was not instructed that the cable might sidesweep and reach him." To the withdrawal of these issues he excepted.

William H. Sleeper, of Exeter, for plaintiff.

Lucier & Lucier (Alvin J. Lucier, orally), all of Nashua, for defendant.

MARBLE, J. Although the plaintiffs expert testified that it was unsafe to move more than four cars at a time with the cable, there is no evidence that the defendant or any of its employees had ever attempted to do so before the day of the accident.

The plaintiff does not charge the defendant with any fault in respect to premises, appliances, or associates in the work, nor does he claim that the defendant should have inspected the eyebolt in question. If there was any negligence on the part of the defendant, it must be found in the failure to make suitable regulations for the conduct of the work, and there is nothing in the record to indicate the absence of such regulations. The presumption is that the defendant prescribed the requisite rules, and the burden of proving its dereliction in that regard was upon the plaintiff. Smith v. Boston & M. R. R., 73 N. H. 325, 327, 61 A. 359; Hill v. Boston & M. R. R., 72 N. H. 518, 519, 57 A. 924; Manning v. Manchester Mills, 70 N. H. 582, 584, 49 A. 91.

"If a rule would have protected the servant, if observed, his injury may be due either to the want of the rule, negligence of the master, or to its nonobservance, negligence of the plaintiff or his fellow servants. Hence, proof of an injury preventable by a different course of conduct is not of itself evidence of the master's negligence." Hill v. Boston & M. R. R., supra.

A like result is reached if it is conceded that it was negligent to fasten the cable to the chain under any circumstances. A witness who had worked in the defendant's coal yard for 12 years testified that he had never seen a car moved in that manner before, and while another witness, whose understanding of English was extremely limited, answered affirmatively an interrogative statement to the effect that he always hooked the cable to the chain whenever he found a car equipped with one, there is no evidence that this had occurred often enough to charge the defendant with knowledge of the practice. Wallace v. Boston & M. R. R., 72 N. H. 504, 507, 508, 517, 57 A. 913. See, also, Cunningham v. Spaulding, 80 N. H. 335, 116 A. 757; Sanborn v. Boston & M. R. R., 76 N. H. 523, 529, 86 A. 157; Klineintie v. Nashua Mfg. Co., 74 N. H. 276, 67 A. 573; St. Pierre v Foster, 74 N. H. 4, 64 A. 723; Smith v. Boston & M. R. R., supra.

Under such circumstances, the act of the foreman in directing the movement of the cars would be an act of service. Tilley v. Rockingham County Light...