Thompson v. Bartlett

• Decision Date: 03 December 1901
• Citation: 51 A. 633,71 N.H. 174
• Parties: THOMPSON v. BARTLETT et al.
• Court: New Hampshire Supreme Court

51 A. 633

71 N.H. 174

THOMPSON

v. BARTLETT et al.

Supreme Court of New Hampshire. Hillsboro.

Dec. 3, 1901.

Exceptions from Hillsboro county; before Justice Pike.

Action by Terence Thompson against Bartlett, Hayward & Co. for injuries received while in the employ of defendants. From judgment in favor of the plaintiff, the defendants bring exceptions. Exceptions overruled.

The defendants are a corporation engaged in the manufacture and erection of boilers, tanks, etc. In the summer of 1900 they were under contract to erect a gasometer tank for the. Nashua Light Heat & Power Company. The tank was about 90 feet in diameter, and 24 feet in height it was constructed of plates of wrought iron, each 6 feet wide, riveted together. The plates were beveled at the edges, and after they were riveted the edges were calked. It was the defendants' duty to prepare stagings for the calkers, and to move the stagings from one place to another, as the work of the calkers required. The plaintiff entered the service of the defendants as a calker, June 22, 1900. He was 54 years of age, of ordinary intelligence, and had been engaged in the boiler business 34 years. His duty required him to calk the beveled edges between the plates. To enable him to do this, stagings were erected by the defendants, by placing horses with projecting ledger boards near to the inside of the tank, and laying a double row of planks upon the ledger boards, so that the planks would project over the boards sufficiently to make them secure to walk upon. The ledger boards were about 10 feet apart, and the planks were about 2 inches thick, 10 to 12 inches wide, and 12 feet long. The plaintiff's evidence tended to prove the following facts: Before July 21, 1900, the day that the plaintiff was injured, he had calked all of the edges of the tank, except those portions where the horses, some 20 in number, prevented. On the morning of the accident, the defendants moved the horses away from the inside of the tank about 8 inches, so that those portions of the edges that had been covered by the horses could be calked. The plaintiff walked once over the planks in their changed position without discovering anything wrong in the way the planks were placed. When he had finished the calking, he began to retrace his steps to the ladder that led from the staging to the top of the tank. After the plaintiff walked over the planks in their changed position, the defendants moved the horses back against the tank, but in such a way that one of the planks was insecurely placed. Instead of reaching to and being supported by a ledger board, one corner of the end farthest from the plaintiff rested only upon another plank. The plaintiff knew that the horses had been moved back, but not that the plank was insecurely placed. There was nothing to prevent him from seeing the position of this plank, had he looked at its farther end. While retracing his steps to the ladder his duty required him to examine the beveled edges of the plates, to see that the calking had been properly done. He took two or three steps upon the insecure plank, and it began to fall. He was unable to save himself, and fell with it, sustaining his injuries. The defendants' evidence tended to prove that when the staging was moved away from the side of the tank they did it in a proper manner; that they never moved it back again, as the plaintiff claimed; and that the danger was one about which the plaintiff knew or should have known by the exercise of ordinary care. At the close of the evidence the defendants moved that a verdict be directed in their favor. The motion was denied, and they excepted.

Doyle & Lucier and George B. French, for plaintiff.

Hamblett & Eaton, for defendants.

REMICK, J. For present purposes it must be assumed that it was the legal duty of the defendants to prepare and move the staging for the plaintiff, and in such manner that it would be and remain in a reasonably safe condition; that, notwithstanding this duty, the defendants so moved the staging just previous to the plaintiff's injury that one of the planks was insecurely placed; that the plaintiff had no actual knowledge that the plank was misplaced, or of the danger arising from it, and had no opportunity for knowledge other than that afforded by the circumstances attending his approach to the danger at the very time of his injury; that during this brief interval his attention was preoccupied with his own peculiar duties as the defendants' servant. Upon these facts we are asked to say, as a matter of law, that the plaintiff ought to have discovered the danger occasioned by the misplaced plank, and avoided it. It is, indeed, settled, at least in this jurisdiction, that actual knowledge of the danger is not necessary to bar recovery. The rule in this respect was clearly stated by Carpenter, J., in Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159, 162, as follows: "The result is the same whether the plaintiff acts with full knowledge of the danger, or, by reason of a...