Race v. Graves & Ramsdell Co. , 79 N.H. 144 ( 1919 )

The plaintiff's exception to evidence that the shooting gallery was closed July 21, when the defendant found that "the work was not covered by insurance," cannot be sustained. The plaintiff's evidence showed that Martin, the man in charge of the gallery, who discharged the gun which caused the plaintiff's injuries, ceased to work there on July 21, eight days after the accident occurred. This fact alone might afford some ground for the argument that he was discharged in consequence of his carelessness in handling the gun. To meet this argument it was legitimate for the defendant to show that the gallery was closed on that day, because it was discovered that its insurance policy against liability for accidents did not cover the business carried on in the shooting gallery.

Although the requested instruction is merely a brief statement of an abstract proposition of law, which is not specifically applied to the evidence in the case, and although it might be held for that reason that the refusal of the court to give it was justified (Kuba v. Devonshire Mills, 78 N.H. 245, 247; Woodman v. Northwood, 67 N.H. 307; Ordway v. Sanders, 58 N.H. 132), an examination of the evidence reported shows that a finding that the boy was employed by the defendant to work in the shooting gallery could not be sustained. It does not appear that he had worked in that place before the accident, that he had ever before cleaned the guns used in the gallery, or that the man in charge of that building was authorized by the defendant to employ him in work of that character. Moreover the boy testified that he was not employed to work there. That he was not working within the scope of his employment when he was shot seems to be clear; hence the law of master and servant has no application.

Exceptions overruled: judgment on the verdict.

PLUMMER, J., was absent: the others concurred.