Deshaies v. Company , 80 N.H. 351 ( 1922 )

The sole ground upon which the plaintiff seeks to hold the defendants responsible for this injury is the alleged absence of rules and regulations in the conduct of the work. The special danger to the workmen was the use of explosives in close proximity to their work-place. As to this, it was plainly the duty of the defendants at least to establish such a method of operation as would reasonably protect their employees from this occasional danger.

"A reasonably safe method of operation, customarily followed, is in effect equivalent to the establishment of reasonable rules, so far as the employer's duty in this respect is concerned." Parmaleau v. Company,75 N.H. 69, 71. It cannot be found that the manner in which this work was done, with the precautions taken for the safety of the workmen before the blasts were fired, detailed in the evidence, did not constitute a reasonably safe method of operation. However this may be, the plaintiff was not injured by any lack of defendants' care in blasting.

He was injured while walking in the roadway, behind one of the defendants' trucks, by the truck running backward a few feet. It is not at all probable he would have suffered any injury by the backing of the truck except for the fact that just at this moment being pushed by another workman, he stumbled and fell in the path of the truck. If the injury arose from the careless operation of the truck or the fault of the one who pushed or fell upon him, the injury was due to the negligence of a fellow-servant, for which in this common law action no recovery can be had against the common employer. If there was no such negligence, the plaintiff's injury in the absence of negligence on his part was a pure accident, the unforeseeable result of the unexpected situation disclosed in the evidence.

While the plaintiff contends in his brief that it could be found from the evidence that rules were necessary for the safe conduct of the defendants' business, he fails to specify any rule the want of which could be found the cause of his injury. There was no evidence that for a second truck to follow another into the pit and there turn to take its place under the shovel was not as reasonable and safe a method of doing the work as the alternative method of backing in after the first truck came out. It is true, if no second truck had been allowed in the pit, the occasion of the stopping and backing of the truck which injured the plaintiff would not have existed. But it does not follow that something else might not have occurred to cause this truck to stop and back. The situation which caused the injury was the use of the roadway for trucks and men at the same time. There was nothing complicated or hidden about it. Hence there was no occasion for a rule or instruction as to the joint use of the means of exit by trucks and men. Parmaleau v. Company, supra, 71; McLaine v. Company, 71 N.H. 294, 297. The plaintiff had been on the job two weeks, and this use of the roadway because a blast was imminent took place two or three times a day. The danger from workmen and trucks jointly using this roadway for such a purpose was open and apparent to the plaintiff's observation. Hence it could not be found that he did not assume the peril of such use, if any there was. Bjork v. Company, 79 N.H. 402, 405.

Exception overruled.

PLUMMER, J., was absent: the others concurred.