Marston v. City of Portsmouth

• Decision Date: 03 October 1916
• Citation: 99 A. 93,78 N.H. 223
• Parties: MARSTON v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

99 A. 93

78 N.H. 223

MARSTON

v. CITY OF PORTSMOUTH.

Supreme Court of New Hampshire. Rockingham.

Oct. 3, 1916.

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

Action on the case by Albert W. Marston against the City of Portsmouth.There was verdict for plaintiff, and defendants except to denial of their motion for a directed verdict.Transferred on the exception, and exception overruled.

Samuel W. Emery and Albert R. Hatch, both of Portsmouth, for plaintiff.Ernest L. Guptill and Jeremy R. Waldron, both of Portsmouth, for defendant.

YOUNG, J.It would serve no useful purpose to consider the defendants' contention that it cannot be found they failed to provide suitable drills, for it can be found that the drill the plaintiff was striking had been used so long, when the accident happened, that the head was badly mushroomed, and that it is dangerous to use a drill with such a head.It can also be found that the defendants either knew, or ought to have known, of this danger, and that the plaintiff neither knew, nor was in fault for not knowing of it.It can be found therefore that the defendants were in fault for not instructing the plaintiff as to when a drill needed to be repaired, for it is an employer's duty to do whatever the ordinary man would do to enable his employés to do their work in safety; and...