Cronin v. Company , 75 N.H. 319 ( 1909 )

The plaintiff admitted in his testimony that he knew at the time of his injury that if he allowed his foot to extend beyond the guard it would hit the floor above when the elevator went up through, but he testified that he was not thinking of the situation at that time. He was a boy of average intelligence and about fourteen years of age, who it appears understood the situation and appreciated the danger. It was unnecessary, therefore, for the defendant to instruct him that it would be dangerous for him to allow any part of his person to extend beyond the guard when the elevator was in motion. Hicks v. Paper Co., 74 N.H. 154, 157. Knowing the situation and appreciating the danger, he must be held to have assumed the risk he incurred. His only excuse is that he "did not think." But it was his duty to think, and in view of his knowledge, to use such care, including the mental operation of some thought, as a boy of his intelligence would exercise under the circumstances. It was not the defendant's duty to tell him to think. Gorman v. Company, ante, 123. He was confessedly "thoughtless and careless, when his duty to the" defendant "as well as to himself required him to be thoughtful and careful." Gahagan v. Railroad, 70 N.H. 441, 446. "The obligation to exercise care is not satisfied by unexplained absence of action and thought in a situation of known danger." O'Hare, v. Company,71 N.H. 104, 107. The jury were not warranted in finding that he performed the duty of care imposed upon him; for' it does not appear that he used any care with reference to his position in the elevator, which he knew, if he had thought about it, was attended with the special danger which caused his injury.

Exception sustained: judgment for the defendant.

All concurred.