Stone v. Boscawen Mills , 71 N.H. 288 ( 1902 )

I. It was within the discretion of the trial court to permit the introduction of further evidence by the plaintiff, notwithstanding he had rested, the defendants had moved for nonsuit, and the motion had been argued. Sanford Mfg. Co. v. Wiggin, 14 N.H. 441, 451; Wells v. Burbank,17 N.H. 393; State v. Martin, 89 Me. 117; Meserve v. Folsom, 62 Vt. 504; Case v. Dodge, 18 R. I. 661; Trumbull v. O'Hara, 68 Conn. 33; Wingo v. Caldwell, 35 S.C. 609; Cushman v. Coleman, 92 Ga. 772; Kelly v. Company, 22 Col. 221; Garber v. Gianella, 98 Cal. 527; Illinois etc. R. R. v. Griffin, 80 Fed. Rep. 278, 281. Were we at liberty to revise this discretion, it does not appear to have been improperly, exercised.

II. The defendants' motions for a nonsuit and verdict were properly denied. There was evidence from which reasonable men might find that the elevator was defective; that the danger was concealed; that the defendants in the exercise of ordinary care ought to have known of it, and warned and instructed the plaintiff regarding it; that the defendants neglected so to warn the plaintiff; that the plaintiff neither knew, nor in the exercise of ordinary care ought to have known, of the danger; that the injuries complained of were the natural and probable result of such defect, danger, and neglect to warn.

(1) The fact that the plaintiff permitted the elevator to run up to the attic floor, when in the regular course of his duty he would have stayed it at the spinning-room or speeder-room floor, is no answer to the present action. The findings "that it was not the practice to watch the elevator very carefully, and as a consequence it sometimes went beyond its destination," and that "the elevator when needed for use might be at any part of the well, and was used by other employees besides the plaintiff," leave little basis for the claim that the plaintiff was negligent in this connection. Whether he was negligent or not in this respect was, certainly in view of the nature of the service, and the evidence and findings in the case, a question for the jury. If negligence, "it was only a remote cause, affording only, an opportunity or occasion for the injury, or a mere condition of it," and therefore no bar to the plaintiff's action. McGill v. Granite Co., 70 N.H. 125, 128; Pollard v. Railroad, 87 Me. 51; Fickett v. Fibre Co., 91 Me. 268; Terre Haute etc. R. R. v. Mansberger, 65 Fed. Rep. 196; Tullis v. Railroad, 105 Fed. Rep. 554, 558; Cool. Torts (2d ed.) 16.

(2) The contention that the plaintiff was voluntarily outside the sphere of his employment at the time of his injury, and therefore cannot recover, is untenable. While, generally speaking, the plaintiff "had no duties upon the two upper floors or in the basement," the discharge of his duty in relation to the floors to which he was assigned involved the operation by him of an elevator which moved in a well from basement to attic, and which when needed for his particular work "might be at any part of the well." The elevator having stuck in the attic, and being necessary to the performance by the plaintiff of his duties elsewhere, it cannot properly be said that he was outside the scope of his employment in going to the attic to see what the trouble was. The defendants' overseer, McGill, testified in effect that the plaintiff was expected to go to. other places than those to which his particular duties related, for the purpose of freeing the elevator from obstructions of a certain kind. It follows logically that he was within the scope of his employment in going to the attic on the occasion in question. He could not otherwise know whether the obstruction was a trivial one, such as he was expected to remove himself, or of the kind which it was his duty to report to the "mechanic in charge."

(3) But it is suggested that if the plaintiff was properly in the attic at the time of the injury, he had no right to remove the obstruction; that he should have reported it to the mechanic in charge; that in attempting to remove the obstruction himself he acted not only as a volunteer, but contrary to instructions. We are unable to see how the obstruction in the present case was materially different in character from the kind which the overseer testified it was the plaintiff's duty to remove. Independently of this testimony, it is improbable that the instruction to report to the mechanic in charge contemplated that the plaintiff should report trifling obstructions requiring no mechanical skill, easily within the understanding and capacity of the elevator boy, and involving no hazard under normal conditions.

(4) In view of the concealment of the slack in the attic, and the reasonableness of the supposition that the elevator would ascend, or at least be steadied in its motion by the rope, when the obstruction was removed, it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence, and assumed the risk of resulting injury, in stooping over the guard-rail which was across the front of the well and pulling the box which caused the obstruction. "Not only has the determination of such questions in this jurisdiction been relegated to the decision of the jury, under proper instructions of the court, by a long and unbroken line of decisions, but, in addition, it may properly be observed that if this case were of new impression, nothing appears which would justify the granting of the defendant's motion under the circumstances attending the plaintiff's injury." Brown v. Railroad, 68 N.H. 519.

Exceptions overruled.

All concurred.