Dostie Ex Rel. Dostie v. International Cotton Mills

The defendants contend that even if they were in fault the plaintiff cannot recover because (1) he assumed the risk of his injury and (2) was guilty of contributory negligence. The test to determine whether he assumed the risk is to inquire whether he either knew or ought to have known that his hand was liable to come in contact with the cylinder when he was reaching in under the machine for flax and fully appreciated the risk incident thereto. Cassidy v. Company, 79 N.H. 427. It cannot be said, therefore, that he assumed the risk of his injury, for he testified that he did not know that his hand might be caught in the roll, and it cannot be said that the ordinary boy of his age and mental capacity and with his experience would have known of it. Neither can it be said that he was guilty of contributory negligence, for negligence as used in this connection is the doing or omitting to do that which the ordinary boy of his age and experience, and with his opportunity to know, and capacity to understand the situation and its dangers, would not have done or omitted.

The defendants also contend that the court erred when it refused to instruct the jury that "if the plaintiff put his hand in a place where he did not know it was safe to put it, because he did not think or because he did not care whether it was dangerous or not, then he cannot recover." If it is true that one who puts his hand in a place when he does not know it is safe because he does not care is guilty of negligence as a matter of law, a question as to which no opinion is intended to be expressed, it does not help the defendants, for their request to give that instruction was coupled with a request to instruct the jury that one who puts his hand where he does not know it is safe, because he does not think, is guilty of negligence; for while the fact a person does not think is relevant to, it is not conclusive of the issue of his lack of care. Bennett v. Warren,70 N.H. 564.

Exceptions overruled.

All concurred.