Maltais v. City of Concord

• Decision Date: 02 May 1933
• Citation: 166 A. 267
• Parties: MALTAIS v. CITY OF CONCORD.
• Court: New Hampshire Supreme Court

166 A. 267

MALTAIS

v. CITY OF CONCORD.

Supreme Court of New Hampshire. Merrimack.

May 2, 1933.

Transferred from Superior Court, Merrimack County; Scammon, Judge.

Case for negligence by Charles Maltais against the City of Concord. Verdict in favor of plaintiff. Transferred on defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict.

Judgment on the verdict.

Case for negligence to recover for personal injuries alleged to have been caused to the plaintiff by the caving in of a ditch in which he was working. Trial by jury, with a verdict for the plaintiff. The defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict were transferred by Scammon, J.

The facts are stated in the opinion.

Robert W. Upton and Laurence I. Duncan, both of Concord (Laurence I. Duncan, of Concord, orally), for plaintiff.

Murchie, Murchie & Blandin and Robert Kelliher, all of Concord (Alexander Murchie, of Concord, orally), for defendant.

BRANCH, Justice.

The plaintiff was injured upon May 12, 1928, through the caving in of a ditch then under construction by the defendant in the course of an extension of its water system. The ditch was approximately three feet wide at the top, two and one-half feet wide at the bottom, and five and one-half feet deep. The excavating was done by a gasoline trench digger or tractor shovel, and it was the plaintiff's duty to level off the bottom of the ditch after the trench digger had done its work. The plaintiff had been employed by the defendant six or seven days before the accident and had been working on the ditch in question for two or three days. He received no warnings or instructions in regard to the danger that the ditch might cave in, and no safeguards designed to prevent such an occurrence had been installed by the defendant.

The defendant takes the position that a verdict should have been directed in its favor (1) because there was no evidence of its negligence, (2) because it conclusively appeared that the plaintiff assumed the risk from which his injuries resulted, (3) because the plaintiff was guilty of contributory negligence as a matter of law.

In order to acquire an adequate understanding of the legal rights and obligations of the parties it will be helpful to consider first the claim of the defendant that the plaintiff assumed the risk of being injured by the caving in of the walls of the ditch.

1. It is contended by the defendant that the plaintiff admitted on the witness stand his knowledge of the danger that the ditch might cave in and that under the rule laid down in Harlow v. Leclair, 82 N. H. 506, 136 A. 128, 50 A. L. R. 973, he is bound by this testimony. The evidence does not sustain this position. The plaintiff asserted in his direct examination that he did not "know there was any danger from the banks of the ditch" and in his cross-examination he repeatedly denied any knowledge of the likelihood that the walls of a ditch may cave in. Defendant's counsel finally presented to him, however, the alternative of admitting that he was on the lookout for a possible cave-in or that he took no care for his own safety. While he was fencing with counsel in an effort to avoid this dilemma, he twice stated that he looked around to see if there was any danger that the ditch might cave in, and upon each occasion immediately denied that he looked around for that purpose.

If from the plaintiff's statements that he looked around to see whether the ditch was likely to cave in, the conclusion could be drawn that he knew and appreciated the likelihood of such an occurrence and the dangers incident thereto, the rule stated in Harlow v. Leclair, supra, does not compel the drawing of such an inference. That rule applies only when the testimony of a party is "clear and unequivocal." It has no application when his statements are "inconsistent and conflicting." Under the circumstances disclosed in this case it was peculiarly within the province of the jury to determine what was the net effect of his testimony with respect to his knowledge of the danger of a cave-in.

If it were established, however, that the plaintiff was chargeable with knowledge of the fact that ditches sometimes cave in, the conclusion that he assumed all risk of injury from that source would not follow as a matter of law. Against this danger it was obviously and admittedly the duty of the defendant to furnish protection, so far as this could be done, by the exercise of due care. The plaintiff was entitled to "presume that this duty had been performed" (Thompson v. Bartlett, 71 N. H. 174, 51 A. 633, 635, 93 Am. St. Rep. 504) unless he had actual or constructive knowledge that there had been a default in performance. In the absence of such knowledge, his assumption of risk would include only those risks of a cave-in which remained after the defendant's duty of protection had been performed (Pantzar v. Tilly, etc., Co., 99 N. Y. 368, 376, 2 N. E. 24). "A proposition which has so frequently been enunciated by the courts as to have become axiomatic is that prima facie a servant does not assume any risks which may be obviated by the exercise of reasonable care on the master's part." 3 Labatt, M. & S. (2 Ed.), §§ 894, 1178. This principle has been the underlying basis of decision in many eases in this jurisdiction, of which the following may be cited as examples: Thomas v. E., H. & A. St. Railway, 73 N. H. 1, 58 A. 838; Charrier v. Boston & M. Railroad, 75 N. H. 59, 70 A. 1078; King v. Gardiner, Bcardsell & Co., 76 N. H. 442, 83 A. 806; Cate v. Boston & M. Railroad. 77 N. H. 70, 87 A. 255; Olgiati v. New England Box Company, 80 N. H. 399, 117 A. 735; Riordan v. Nashua Mfg. Company, 81 N. H. 384. 127 A. 705.

Two methods of guarding against the danger of a cave-in were in use by the defendant, (1) by sloping the sides of the ditch, and (2) by bracing them. It was, of course, obvious to the plaintiff that neither of these methods had been adopted at the time and place of the accident, but there is nothing in the evidence which necessarily leads to the conclusion that he appreciated the significance of the facts which indicated the necessity for such protection. The changing character of the soil through which the ditch ran, which is hereafter referred to and which should have spelled danger to a qualified observer, meant nothing to him, because he knew "nothing about soil." The claim that as a matter of law the plaintiff assumed the risk of the defendant's failure to safeguard the walls of the ditch, therefore, appears to be untenable. "It cannot be said that he assumed the risk, when he was ignorant of facts on which, perhaps, a proper appreciation of the risk depended." Breen v. Field, 157 Mass. 277, 278, 31 N. E. 1075; Kroger v. Exeter Mfg. Company, 84 N. H. 290, 295, 149 A. 872, and cases cited; 3 Labatt, M. & S. (2 Ed.), § 1190.

We have not overlooked the cases in other jurisdictions which may be thought to be inconsistent with the conclusion here reached, some of which are collected in the note to Citrone v. O'Rourke, etc., Co., 188 N. Y. 339, 80 N. E. 1092, in 19 L. R. A. (N. S.) 340, 358, but we do not think they should be followed.

2. There was evidence, however, upon which the defendant might be found chargeable with knowledge of the necessity for additional precautions at the point where the accident occurred. The evidence discloses that for a considerable distance before reaching this point the ditch had run through "hard marly sand" which was "kind of a clayey substance," but that the soil "started to change right where the accident happened" and became more sandy. It was described by the defendant's superintendent as "sand mixed with silt, not so much silt as there had been. * * * It was all sand, all the way through." Another witness described it as "sand, fine sand and some small gravel." The ditch had been dug about 30...