Collins v. Car Company , 68 N.H. 196 ( 1894 )

The motion for a nonsuit should have been granted. Familiar principles of universal acception, as well as recent decisions of this court (Bancroft v. Railroad, 67 N.H. 466; Henderson v. Williams, 66 N.H. 405; Nash v. Company,62 N.H. 406, 408), forbid any other conclusion.

The plaintiff's grounds of complaint are solely (1) that the gearing was not reasonably and safely protected, and (2) that the defendants gave him no warning or instruction as to the resulting danger. No recovery can be had upon either of these grounds.

The fact that the gearing was not covered is not of controlling importance. The danger from it was as apparent to the plaintiff as to the defendants; and there was no emergency requiring him to expose himself to the danger. It was obviously one of the "seen dangers" of which the servant assumes the risk by entering upon the employment, even though reasonable precautions have been neglected by the employer: As to all defects and dangers which are open to the observation and within the knowledge and comprehension of master and servant alike, both stand upon common ground, and no recovery can be had for resulting injury to the latter when he is of sufficient intelligence and knowledge to comprehend the risks incident to the service, which is presumed in the case of an adult person, in the absence of evidence showing the contrary. In such a case, an injury to the servant is within the scope of the danger which both the contracting parties contemplated as incidental to the service, and the master cannot be held liable for the injury. Much less can he be held liable when, as in the present case, it affirmatively appears not only that the danger of which the servant complains was open to common observation and within common comprehension, and that he was of sufficient intelligence and knowledge to comprehend it, but that he actually did know and comprehend it. In brief, the plaintiff stands no better than he would have stood if, by special agreement with the defendants, he had assumed the risk of the gearing.

Of still less importance is the fact that no warning or instruction as to the danger from the gearing was given to the plaintiff by the defendants. None was necessary. It would have been a useless formality merely. The most that could have been said to him was, that he must keep away from the gearing when the machine was in operation or he would get hurt. But this would have given him no knowledge he did not already possess. The danger of getting caught in the gearing was perfectly obvious to him, and he therefore knowingly and voluntarily assumed it as one of the ordinary risks of his employment. The duty resting on the master to instruct or warn the servant of all latent and hidden defects or hazards incident to the employment, of which the master knows or ought to know, does not extend to dangers open to ordinary observation, except in cases of youth, inexperience, ignorance, or want of capacity of the servant, and cannot be invoked as to patent defects or dangers by a servant of mature capacity and knowledge. As to such defects or dangers as are obvious to the senses, he is bound to take notice, and when, as in the case of this plaintiff, he admits he knew of the danger and comprehended it, it would be as absurd as it manifestly would be unjust to permit a recovery on the ground that his employers did not warn him of that danger.

In view of these conclusions, the other exceptions taken at the trial need not be considered.

Judgment for the defendants.

SMITH, J., did not sit; DOE, C. J., did not concur: the others concurred.