Smith v. Company , 80 N.H. 299 ( 1922 )

Since the plaintiff has elected to proceed at common law, he cannot recover unless he shows that the intestate neither knew nor was in fault for not knowing of the dangers incident to attempting to wade the stream when and as he did, Bergeron v. Company, ante, 231, for it must be held that he assumed the risk of all the dangers of the employment of which he either knew or would have known if he had used ordinary care for his own safety. Cassidy v. Company, 79 N.H. 427.

The question in this case, therefore, is not what the ordinary boy of the intestate's age and experience would have done, but what he would have known in respect to the dangers incident to wading this stream. In other words, the test to determine whether the court erred in ordering a nonsuit, is to inquire whether it can be found that the ordinary boy of the intestate's age and experience would not have known that there might be both rocks from which he might slip, and holes into which he might fall, in the bed of the stream.

All fair minded men must agree that it is at least as probable that the ordinary boy of the intestate's age and experience would, as it is that he would not, have known of these things; consequently it must be held that the plaintiff failed to sustain the burden of proving that the risk was not one the intestate assumed.

Exception overruled.

All concurred.