Richardson v. Conn. Valley Lumber Co.

• Decision Date: 03 February 1914
• Citation: 90 A. 174,77 N.H. 187
• Court: New Hampshire Supreme Court
• Parties: RICHARDSON v. CONNECTICUT VALLEY LUMBER CO.

90 A. 174

77 N.H. 187

RICHARDSON

v. CONNECTICUT VALLEY LUMBER CO.

Supreme Court of New Hampshire. Coos.

Feb. 3, 1914.

Transferred from Superior Court, Coos County; Pike, Judge.

Case by Samuel E. Richardson, administrator, against the Connecticut Valley Lumber Company for personal injuries. The plaintiff's intestate, Joseph Valley, while in the employ of the defendant, was killed by an explosion of dynamite which he was attempting to thaw before an open fire. The dynamite ignited, and Valley took the burning fragment in his hands for the purpose of extinguishing the flame. An explosion occurred, causing injuries from which he died shortly afterward. The plaintiff alleged that the defendant was negligent in failing to employ suitable fellow servants and to furnish suitable appliances for thawing dynamite. The court ruled that there was no evidence to warrant a submission of the case to the jury on either ground, but submitted the question of the defendant's negligence in failing to warn Valley of the danger of thawing the dynamite before an open fire. The defendant's motions for a nonsuit and the direction of a verdict in its favor were denied, subject to exception. The jury having disagreed, the defendant filed a bill of exceptions which was allowed. The evidence was made a part of the bill of exceptions. Exceptions sustained.

Burritt H. Hinman and Sullivan & Daley, all of Berlin, for plaintiff. Drew, Shurtleff & Morris, of Lancaster, for defendant.

PARSONS, C. J. The plaintiff's intestate was killed while attempting to thaw frozen dynamite by an open fire. The dynamite took fire, and* he, against the expostulation of a fellow workman who called his attention to the danger of explosion, took the burning piece in his hand, saying it would not explode unless given a sudden jar. The fragment, however, did explode, and he received the injuries from which he died.

If the explosion of the dynamite was due to a jar received in handling it, that the deceased knew and assumed the risk is apparent. There was evidence, however, that, while dynamite may burn without explosion, it may explode from the action of fire without concussion. Upon this evidence, despite the 20 years' experience in the use of dynamite claimed by Valley and his successful management of it in a large number of cases in the course of his employment by the defendant, it could be found Valley did not know or appreciate all the perils connected with burning dynamite; and the questions would be whether he was killed by a peril of which he knew and the risk of which he took, or by the one of which he did not know, and, if the latter could be found without evidence, whether the defendant is in...