Fontaine v. Johnson Lumber Co.

The plaintiff contends that because he was unconscious of his danger he did not assume the risk of his injury; but the test to determine that question is to inquire whether he knew of the physical condition of the defendants' instrumentalities of which he complains and appreciated the risk of the particular danger incident thereto which caused his injury (1 Labatt M. S. s. 279 a), and not whether he was conscious of his danger. Cronin v. Company, 75 N.H. 319. In other words, notwithstanding the evidence on which the plaintiff relies is relevant to the issue of his care, it is not sufficient, in and of itself, to prove that the defendants were in fault; for the only duty they owed him in so far as instrumentalities were concerned was that of notifying him of those dangers of the service of which they did and he did not know. Ahern v. Company,75 N.H. 99. Consequently he cannot recover, for he knew that the gear was uncovered and what would probably happen if his hand came in contact with it.

Exception overruled.

All concurred.