Weeks v. Cushman-Rankin Co.

The defendants admit that upon the evidence the jury could find that they were negligent. The only claim made by the defendants in their brief or in oral argument is that the plaintiff was guilty of contributory negligence and for that reason cannot recover. It is therefore assumed that the other exceptions taken by the defendants at the trial are waived, and that the sole question for consideration is whether the plaintiff was negligent. The action being brought under the Laws of 1911, chapter 163, the burden of proof is upon the defendants to show negligence on the part of the plaintiff.

The test to decide whether the plaintiff was negligent is to inquire if a person of ordinary prudence, placed in the same circumstances that the plaintiff was, would have done what he did. Davis v. Railroad, 68 N.H. 247,252; Smith v. Railroad, 70 N.H. 53, 85; Boody v. Company, 77 N.H. 208, 214. The plaintiff's right to have the question of his negligence determined by a jury does not depend upon whether he took every precaution he could to prevent the accident, but whether he exercised care to such a degree that his conduct might be regarded as that of a man of average prudence. Bass v. Railway, 70 N.H. 170.

When the accident occurred the plaintiff had just been tightening up the nut on the crow's-foot on the left-hand side of the manhole cover. He was told to tighten up the nut by Drury, who was present and had charge of the work, and he did it in just the way and manner that Drury directed him to do it. Drury was a millwright of twenty-five years' experience and had done the millwright work for the defendants for nine years, going there nearly every day for that purpose. The plaintiff had known him for twenty-three years, and had worked as fireman for the defendants for nine years, during the same period that Drury had done their millwright work.

The plaintiff unquestionably knew that Drury was a millwright of long experience and that he had done all the millwright work for the defendants during the nine years that the plaintiff had been employed by them as fireman. Whether Drury was a vice-principal or a fellow-workman of the plaintiff, he was a man whose knowledge of the work they were doing was much superior to that of the plaintiff, and he was in charge of the work. The plaintiff, knowing this, had a right to assume that Drury would not tell him to tighten up the nuts on the crow's-feet unless it was reasonably safe to do so, nor direct him to do it in a dangerous manner.

It may be that the plaintiff knew that it was not customary to turn up the nuts on the crow's-feet when there was as much pressure in the boiler as there was at the time of the accident, and that he had been instructed when and in what manner to screw up the nuts; but upon this occasion he was acting under the direction of a skillful and experienced millwright who had the work in charge, he did exactly as he was told to do, relying upon the superior knowledge of the millwright, and it cannot be said, as a matter of law, that no reasonably prudent man, placed as the plaintiff was, would have done what he did.

The circumstances in this case were such that reasonable and fair-minded men might differ as to what the plaintiff should have done, and therefore a nonsuit or a directed verdict for the defendants was properly refused. Lyman v. Railroad, 66 N.H. 200, 204. The evidence did not conclusively prove that the plaintiff was negligent, and there was no error in submitting the case to the jury.

Exceptions overruled.

All concurred.