Thurston v. Conway Lumber Co. ( 1921 )

The defendants do not seriously contend that it cannot be found they were in fault for permitting the plaintiff to work near an uncovered gear. What they contend is that it cannot be found (1) that their fault in this respect was the legal cause of the plaintiff's injury, or (2) that he was free from fault.

They base their first contention on the proposition that it cannot be found the rolls were turning toward the south when the accident happened. If this contention is sound, the plaintiff's case fails, for his hands could not have been drawn against the broken gear case unless the rolls were turning toward the south. This contention, therefore, resolves itself into the question whether there is any evidence tending to prove that the rolls were turning toward the south when the accident happened.

The evidence relevant to that issue tends to prove that if the plaintiff was standing where he says he was when he was injured, his hand could not have been caught in any other part of the gear. If, therefore, the jury found that the plaintiff told the truth as to where he was standing when he was injured, that finding would warrant the further finding that the rolls were turning toward the south at that time, for otherwise the accident could not have happened.

The defendants base their second contention on the plaintiff's testimony that while he knew where the gear was and that the case was broken, he did not think of the danger incident thereto when he reached for the board. Although this evidence is relevant to the issue of the plaintiff's case, it does not conclusively establish that he was guilty of negligence, for it cannot be said that all fairminded men will agree that the ordinary man of his experience and with his knowledge and means of knowledge of the situation and its dangers might not have done what he did. Barber v. Company, 79 N.H. 311.

Exceptions overruled.

All concurred.