Rot v. Hodge

• Decision Date: 05 March 1907
• Citation: 66 A. 123,74 N.H. 190
• Parties: ROT v. HODGE.
• Court: New Hampshire Supreme Court

66 A. 123

74 N.H. 190

ROT

v. HODGE.

Supreme Court of New Hampshire. Hillsborough.

March 5, 1907.

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

Action by Fred Roy against Jeremiah Hodge. Case transferred from the trial term on defendant's exception to the denial of his motion for a nonsuit. Exception sustained.

The evidence tended to prove the following facts: The plaintiff, who was a man of ordinary intelligence and experienced in doing such work, was employed by the defendant to run a bench saw. He stood at the left of the saw to do his work, and threw the edgings he made on a pile at the right of the bench. This pile was 16 feet long and 8 feet wide, and was separated from the bench by posts extending about 54 inches above the top of the bench. About a week before, and again on the day before, the accident, the plaintiff asked the defendant to remove the edgings, because he feared they would fall on the bench and saw. On both occasions the defendant said he did not have time to attend to it then, but would do so "as soon as he got around to it." At the time of the accident, the pile was about 42 inches above the top of the bench at the front, and higher at the back. The plaintiff attempted to throw an edging on the pile. The end caught on its rough face, and in some unexplained way brought his hand in contact with the saw, thus causing the injury complained of.

Branch & Branch, for plaintiff. Burnham, Brown, Jones & Warren, for defendant.

YOUNG, J. There is no evidence that the plaintiff was induced to remain in the defendant's service by reason of the latter's promise to remove the pile of edgings. Bodwell v. Company, 70 N. H. 390, 47 Atl. 613. Consequently, the defendant's motion should have been granted, unless there was evidence from which it can be found that the plaintiff did not appreciate the risk of his hands being brought in contact with the saw, incident to the unusual height of the pile of edgings; for the cause of the plaintiff's injury was the condition of the defendant's instrumentalities (McLaine v. Company, 71 N. H. 294, 296, 52 Atl. 545, 58 L. R. A. 462, 93 Am. St. Rep. 522), and it is the rule in this state that servants whose injuries are caused in that way cannot recover from their master, unless the cause of their injuries is a danger which he did, and they did not, know was incident to using his instrumentalities. Demars v. Company, 67 N. H. 404, 40 Atl. 902. The first question, therefore, is whether there is any evidence from which it can be found that the plaintiff was not "chargeable with a knowledge of the material conditions which were the immediate cause of his injury"; or, if he is, that he did not appreciate "the danger produced by the abnormal conditions in question." 1 Labatt, M. & S. § 279a. He admits that he knew of the material conditions which produced his injury, but claims he did not fully appreciate the danger incident thereto. Demars v. Company, supra. The test to determine that question is not to inquire whether he anticipated being injured in the precise way the accident happened (Stevens v. Company, 73 N. H. 159, 60 Ml 848, 70 L. R. A. 119; English v. Amidon, 72 N. H. 301, 56 Atl. 548; Slack v. Carter, 72 N. H. 267, 56 Atl. 316; Boyce v. Johnson, 72 N. H. 41, 54 Atl. 707; Lapelle v. Company, 71 N. H. 340, 51 Atl. 1068; Whitcher v. Railroad, 70 N. H. 242, 247, 46 Atl. 740; Lintott v. Company, 69 N. H....