Opinion
Decided December, 1894.
Whether a plaintiff who was injured while attempting to load milk-cans upon a slowly moving train was guilty of contributory negligence, is a question for the jury.
CASE, for personal injuries. Verdict for the plaintiff. The plaintiff shipped milk daily from the defendants' station at North Boscawen for six months before the accident. It was the duty of those shipping milk to deliver it upon a platform provided for the purpose, and to hand the cans from the platform into the car. The brakeman of the train was accustomed to help load the milk, and, after it was loaded, to give the conductor a signal for him to start the train. December 30, 1892, the plaintiff, assisted by other milk-shippers and the brakeman, was loading milk; and when all but five cans were loaded, the train started without any signal from the brakeman and without notice or warning to the plaintiff. The plaintiff hurriedly took up three of the cans, walked along the platform beside the car, which he perceived to be moving, tried to put them into the car, and was injured.
The defendants excepted to the denial of their motions for nonsuit and direction of verdict, and their request for the following instructions: "(1) The danger from placing the milk cans on the moving train was an obvious one and was voluntarily assumed by the plaintiff, and therefore he cannot recover. (2) The plaintiff's attempt to place the milk cans upon the car while the car was moving, the plaintiff knowing said car to be moving, was negligence on the part of the plaintiff which caused the accident, and the plaintiff cannot recover."
Sargent Hollis, for the plaintiff.
Joseph W. Fellows and Edward B. S. Sanborn, for the defendants.
It would serve no useful purpose to comment upon evidence such as appears in this case.
The defendants' motions and requests were properly denied. Lyman v. Railroad, 66 N.H. 200, 204; Foss v. Railroad, 66 N.H. 256, 260; Felch v. Railroad, 66 N.H. 318, 320, 322, 323; Boothby v. Railway, 66 N.H. 342; Walker v. Railroad, 64 N.H. 414; Paine v. Railway, 63 N.H. 623; Merrill v. Express Co., 62 N.H. 514; Nutter v. Railroad, 60 N.H. 483, 485; Tuttle v. Farmington, 58 N.H. 13, 14; Griffin v. Auburn, 58 N.H. 121, 134; Paine v. Railway, 58 N.H. 611; Gilman v. Noyes, 57 N.H. 627; Sleeper v. Sandown, 52 N.H. 244; Cheshire Railroad v. Foster, 51 N.H. 490, 493; Page v. Parker, 43 N.H. 363; Palmer v. Portsmouth, 43 N.H. 365.
Exceptions overruled.
WALLACE, J., did not sit: the others concurred.