Record v. Manchester Traction, Light & Power Co.

There was evidence from which it could be found that the pole which fell was badly decayed when inspected by Green in the spring before the accident, and that if Green had not been negligent he would have discovered the fact and reported it to the foreman. If this had been done it is reasonable to conclude that more care would have been used by the foreman at the time of the accident, and the injury would have been avoided.

The defendant's position is that the inspection had been turned over to the linemen generally, so that the case comes within the rule laid down in Sanborn v. Railroad, 76 N.H. 523. The evidence fails to sustain this contention. It appears that the practice was for the foreman to select a man and make an inspection, usually in the spring, and record the result in a book kept for that purpose. It was not the rule or the practice for linemen working upon the poles to inspect them if they "looked all right," as this one did. In this respect the facts differ essentially from those in the Sanborn case. There the workman was supposed to ascertain the condition of the instrumentalities he was to deal with, and to do what was necessary to make them safe. Here he was to assume the safety of the pole unless its appearance indicated a different condition. That is, this pole line, inspected each spring, was a place prepared for the linemen to work upon, and the case was for the jury under the rule as stated in Haakensen v. Company, 76 N.H. 443.

The defendant's claim that the linemen were to reset the poles "as occasion required" omits the essential fact that their knowledge of occasion for such action was to be obtained from the report of the annual inspection. It was not their duty, as a part of their ordinary work upon the line, to ascertain whether a pole had decayed below the surface of the earth.

The fact that the inspection, when made, was carried on by a lineman does not alter the situation. When acting as inspector he was not performing a part of his everyday task, but a special duty to which he might be assigned from time to time. Twombly v. Company, 98 Me. 353. It was not an incident of the routine work of the linemen. Nord Deutscher c. Co. v. Ingebregsten,57 N.J.L. 402.

The defendant's exception to the denial of its motion for a change of venue presents no substantial question of law. There was ample evidence upon which the motion could be denied as a matter of discretion. Whitcher v. Association, 77 N.H. 405. The claim that the denial was the result of a ruling of law rather than of a finding of fact is negatived by the refusal of the presiding justice to amend the case by adding a statement to that effect. The argument that notwithstanding this refusal the record shows that the presiding justice acted as he says he did not, is not entitled to serious consideration. The defendant's contention rests wholly upon inference and surmise, and is contrary to the reasonable interpretation of the record.

Exceptions overruled.

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