Nash v. Company , 62 N.H. 406 ( 1882 )

The ground of the defendants' motion for a non-suit and a verdict directed by the court was, that there was no competent evidence that the plaintiff's injury resulted from the defendants' want of care.

The accident happened from want of care in piling the steel ingots, or because they were piled upon a piece of boiler-plate, which made the pile of uneven stability. If the ingots fell by reason of irregularity or other want of skill or care in piling them, the carelessness was that of the plaintiff's fellow-servants in the same employment, and for that he cannot recover if reasonable care was used to employ competent servants, and the defendants were not informed of any incompetency and lack of care from which they had opportunity to prevent the mischief by discharging them. Farwell v. Railroad, 4 Met. 49; Fifield v. Railroad, 42 N.H. 225, and cases cited. There was no evidence that either the superintendent, or the foreman in charge of the steel department, directed the manner of piling the ingots, or had any notice before the accident of any irregularity or fault in their piling. They were piled by a night gang of employes, and the details of their work were not under the immediate direction or observation of any officer or agent representing the defendants, and any fault or want of care in the labor could not be imputed to such officer or agent, and was not the fault of the defendants.

If the accident was caused by piling the ingots upon a foundation of uneven stability by reason of the section of boiler-plate there, there was no evidence that the agents representing the defendants knew of any such defect in the foundation of the pile, or were in any fault for not knowing it. Without such notice they had no opportunity to prevent the injury, and could not reasonably be expected to have anticipated the accident, and for its consequences the defendants could not be chargeable. The ground did not break away beneath the pile, and there was no evidence that the ground itself was unstable, or unsuitable for a foundation. If the pile was not perpendicular by reason of one end or side of the lower ingot resting upon the boiler-plate, or if the few inches of loose sand with which the plate had been covered had in some way become displaced, no one but the plaintiff's fellow-workmen who placed the pile there knew it. Who placed the boiler-plate iron there and for what purpose, and how long it had been there, nobody knew, and nobody had complained of any danger from it or from the pile itself. The superintendent had been requested to take away faster the ingots which had accumulated and were rapidly filling the room. But this was not because of the danger of their presence, but of the inconvenience resulting from a crowded room, and it did not appear that a compliance with the request would probably have led to a removal of the particular pile, which had been there only one day, in season to prevent the accident.

It did not appear that the agents of the corporation representing them and managing their business were not reasonably diligent and prudent in the employment of competent servants, or that they had, or by reasonable care ought to have had, any notice of incompetency or carelessness of the plaintiff's fellow-servants from which the accident could have arisen.

It is well established, that, in contracts for service, the servant assumes the apparent risks as well as those generally incident to the employment, and this includes the risk of injury from the negligence of other servants in the same employment, if the master has used reasonable care and diligence in procuring and retaining suitable and competent servants. Fifield v. Railroad, supra, 240; Farwell v. Railroad supra, 57; Lawler v. Railroad, 62 Me. 463; Hard v. Railroad, 32 Vt. 473; Cool. Torts 541, 542, and cases cited in note.

The case showing no evidence that the injury resulted from any want of care on the part of the superintendent or foreman, whose acts and knowledge might bind the defendants, and so far as evidence of negligence from which the injury arose appears, showing it was the negligence of the plaintiff's fellow-servants, the defendants cannot be held liable, and their motion for a verdict should have been granted.

Exceptions sustained.

STANLEY, J., did not sit: the others concurred.