Opinion
No. 3771
Decided December 7, 1948.
Where a servant sustained an injury while operating an ice grooving machine on an ice field due to lack of assistance, the fact that workmen of sufficient number and experience were lacking on the field warranted the finding that the master himself failed in his non-delegable duty to furnish an adequate force to do the job, and that the negligence causal of the injury was not that of the foreman in not assigning a sufficient crew to the grooving machine. A finding of freedom from the assumption of the risk was warranted where the servant relying upon the master's promise to furnish necessary assistance continued to perform his duties and sustained an injury because of the master's failure to perform. Contributory negligence of a servant was not established as a matter of law where he was obeying his master's orders and furthering the master's interest in performing duties in the manner he did.
CASE, for negligence to recover for personal injuries alleged to have been received by the plaintiff as employee of the defendant company on February 4, 1945, while trying to turn an ice grooving machine. Trial by jury and verdict for the plaintiff. During the trial the defendant excepted to the admission and exclusion of evidence, to various rulings, to the Court's failure to grant motions for a nonsuit and directed verdict and to his refusal to give certain instructions.
The plaintiff claims he complained to the foreman in charge early on the morning of the accident that because of the rough and snowy condition of the ice there should be four men to help turn the grooving machine instead of three, one of whom was inexperienced. There was testimony that time was important and that the foreman told him "to keep plugging" and "I will go down and get you some help." If he had not agreed to do this the plaintiff says he would have left the job as four experienced men were necessary to do the work. However, relying on this promise he continued with his task of pushing and guiding the machine consisting of a saw, which could be raised or lowered, run by an automobile engine placed on a frame work above runners. It appears that shortly thereafter the foreman did send an individual around sixteen or seventeen years old described as a "thin slip of a boy," who stayed a few minutes and then left and did not return. Soon after the boy left, the plaintiff while trying to turn the grooving machine which had been stuck in a snow bank "went over backwards" and injured his back. He alleges he was ordered to cut ice close to a snow bank at the end of the pond to save as much of the harvest as possible and that in so doing the machine, which weighed about half a ton got stuck "in the slosh and snow." He contends that if there had been sufficient help he would not have been forced to strain so hard trying to get it out and there would have been no accident. Further facts appear in the opinion. Transferred by Lampron, J., on the defendant's exceptions.
Leonard G. Velishka and Alvin A. Lucier (Mr. Lucier orally), for the plaintiff.
Warren, Wilson, Wiggin and Sundeen (Mr. Wiggin orally), for the defendant.
The jury were warranted in finding that the defendant failed in its non-delegable duty to furnish an adequate force to do the work which the plaintiff performed when he went on the job about 3:00 A.M. on the morning in question. The foreman and the plaintiff both testified that help was then lacking in numbers and experience. Therefore, the defendant's claim that the negligence, if any, was that of the foreman in not assigning a sufficient crew to the grooving machine cannot be sustained. Hilton v. Railroad, 73 N.H. 116; Labatt, Master Servant, Vol. 3, (2d ed.), s. 1108, pp. 2915, 2916; 56 C.J.S., Master and Servant, s. 307.
The plaintiff testified that he stayed on the job relying on the defendant's promise to send assistance, and was injured because the latter failed to perform. The defendant asserts the plaintiff cannot recover, first, because adequate help was furnished in the person of the boy, second, the accident was due to a fellow servant's temporarily leaving his post, and finally that the injury was caused by the plaintiff's contributory negligence in running the machine into the snow bank and then trying to turn it around knowing he lacked sufficient help. A careful examination of the record discloses scant merit in these contentions. The jury were obviously justified in finding that sending a "thin slip" of an unknown boy, who might well have said "I came like Water, and like Wind I go," was no adequate compliance with the master's non-delegable duty to furnish the plaintiff with sufficient, competent fellow workers. They were equally warranted in finding that the accident was due to the master's failure to keep a promise, upon which the plaintiff reasonably relied, to remedy the situation. The finding under these circumstances that the plaintiff was free of assumption of risk was proper. Coughlin v. Company, 94 N.H. 57; Nason v. Company, 92 N.H. 251; Sevigny v. Company, 81 N.H. 311.
Nor can the claim that the plaintiff was guilty of contributory negligence as a matter of law be sustained. He had been promised extra help by the foreman in charge who hired him and other men for the job. He had been urged to "keep plugging" as time was important and he had been ordered to cut close to the snow bank to conserve ice as much of the harvest had already been lost by two trucks breaking through the ice and causing cracks. The record discloses that he was a normal healthy man and the jury were not compelled to find him guilty of contributory negligence in driving the machine into the edge of the snow in obeying orders to save ice, nor in endeavoring to turn the machine to prevent a stoppage of the work. Nason v. Company, supra, 254, and authorities cited. Whether the defendant could reasonably be expected to foresee just how the accident might happen is immaterial. Nason v. Company, supra, 253, and cases cited.
It thus appears findable that the plaintiff reasonably relied upon the defendant's promise to remedy a defect and was injured because of the latter's failure to perform. He was not conclusively guilty of contributory negligence or assumption of risk and the jury having decided in his favor on both issues he is entitled to recover. Coughlin v. Company, supra; Nason v. Company, supra; Sevigny v. Company, supra.
The remaining exceptions to the admission and exclusion of evidence and to the Court's failure to grant certain requests have not been briefed nor argued and are therefore deemed waived. However, all have been carefully examined and seem to furnish no grounds for reversal.
Judgment on the verdict.
All concurred.