Snook v. City of Portsmouth, 3130.

• Decision Date: 02 January 1940
• Docket Number: No. 3130.,3130.
• Parties: SNOOK v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

10 A.2d 654

SNOOK

v. CITY OF PORTSMOUTH.

No. 3130.

Supreme Court of New Hampshire. Rockingham.

Jan. 2, 1940.

[Copyrighted material omitted.]

Exceptions from Superior Court, Rockingham County; Johnston, Judge.

Proceeding under the Employers' Liability and Workmen's Compensation Act by Mark Snook, employee, opposed by the City of Portsmouth, employer. Decree for plaintiff, and case was transferred on defendant's exceptions.

Decree for employee.

Petition for compensation under the Employers' Liability and Workmen's Compensation Act, P.L. c. 178, as amended by Laws 1937, c. 147. Trial by the court and decree for the plaintiff. The defendant's bill of exceptions was allowed by Johnston, J.

The court made the following findings of fact:

"On April 30, 1938 the petitioner, Mark Snook was employed by the City of Portsmouth as a helper in the street cleaning division of the Highway Department. His duties required him to assist in cleaning certain streets of the City in the early morning hours by sweeping with a corn broom the loose dirt into piles.

"The City of Portsmouth had accepted for members of the Highway Department, which Department included the job of the petitioner, the provisions of the Workmen's Compensation Act with amendments as amended by Chapter 147 of the Laws of 1937. The acceptance was in writing and was filed with the Commissioner of Labor.

"At approximately twenty minutes before five o'clock on the morning of April 30, 1938 the petitioner was struck by an automobile on Congress Street and seriously injured. He had come from home with his broom and had finished his breakfast at Arthur's Diner, which was on the northerly side of Congress Street. He passed around the front end of a truck parked on the northerly side of the street nearly in front of the Diner and was walking into the street with his broom when he was struck. What he was intending to do immediately is not known. He and a Mr. Downs had the job of sweeping the southerly half of Congress Street and ordinarily started some two hundred fifty or three hundred feet westerly of Arthur's Diner.

"The petitioner's work lasted four hours. The scheduled time at this season of the year was from five to nine o'clock. Sometimes the work started a little before five if all the four sweepers had arrived and would stop correspondingly before nine. The petitioner had not actually begun work at the time of the accident but was within a reasonable margin of time and space necessary to be used in passing to and from the place where the work was to be done. The accident arose out of and in the course of the workman's employment."

Other facts are stated in the opinion.

William H. Sleeper, of Exeter, for plaintiff.

Hughes & Burns, of Dover, and Walter A. Calderwood, Jr., of Nashua, for defendant.

BRANCH, Justice.

In support of the defendant's contention that its motion to dismiss the petition should have been granted, it is argued that the plaintiff was not engaged in "a type of employment which was contemplated by section 1 of this act." In support of this argument it is asserted first, that there is no evidence that five or more persons were employed by the defendant, and second, "that the work is not inherently dangerous to the life or limb of the workman nor is there danger of injury by fellow servants great or difficult to avoid." Neither of these arguments merits more than passing notice.

So far as the first of these assertions is material the answer is well indicated in the plaintiff's brief. The evidence clearly disclosed the fact that the particular crew with which the plaintiff worked consisted of five men.

The fact that the plaintiff's work did not fall within one of the classifications of the original act (P.L. c. 178, § 1) is clearly immaterial in view of the amendment of 1937, which provides that any city "may accept for designated or for all workmen in its employ, the provisions of this chapter * * * and it shall thereafter be liable to such workmen for any injury arising out of and in the course of their employment. * * *" Laws 1937, c. 147, § 1. By virtue of this amendment the City was authorized to accept the provisions of the act "for all workmen in its employ" without reference to the perils of the work in which they were engaged and it is, therefore, unnecessary to inquire in a given case whether the injured workman would have come within any of the classifications specified in the first section of the act before amendment.

The defendant also argues that at the time its motion to dismiss was made "there was no evidence that the respondent had accepted the provisions of the act." It is true that when the defendant's motion was made, no formal proof that the City had accepted the provisions of the act had been presented. It is also true that the question had not been specifically raised by the defendant. The complete answer to the defendant's argument is, that after the evidence was closed, the court permitted the case to be reopened and received evidence that the City had accepted the provisions of the act, which amply justified the conclusion that "the City of Portsmouth had accepted for members of the Highway Department * * * the provisions of the Workmen's Compensation Act." It has long been understood in this state that, after a case has been closed, the court may, in its discretion, reopen it for introduction of additional testimony and that the exercise of its discretion will not be revised by this court. Wells v. Burbank, 17 N.H. 393, 412.

The defendant further argues that the evidence does not sustain the finding of the court that the plaintiff was, at the time of the accident, "within a reasonable margin of time and space necessary to be used in passing to and from the place where the work was to be done," The evidence not only supports this finding but would support findings much more favorable to the plaintiff's position. The accident happened upon Congress Street, which was the street upon which the plaintiff was required to work, at a point within 250 feet of the place where his work ordinarily commenced and at a point where he would actually have been sweeping within a short time after the work started. The court found that it happened at a time within twenty minutes of 5...