AMERICAN WOOLEN CO. v. STEWART, 217 F. 1

BINGHAM, Circuit Judge. The plaintiff, Andrew G. Stewart, a minor, brings this action by his father, and next friend, against the American Woolen Company to recover damages for injuries received on the 10th of June, 1913, while in the employment of that company, by reason of his hand being drawn between the carding and the hickey rolls of a finishing machine; it beirig one of four machines constituting a set of cards upon which he was employed. The declaration contained two counts. The case proceeded to trial upon the second count, the first having been waived.

The second count was framed under the employers’ liability statute of New Hampshire (chapter 163, Laws of 1911), and the negligence complained of was, among other things, the failure of the defendant to warn and instruct the plaintiff as to the dangers of his employment and the manner of doing his work. The jury returned a verdict for the plaintiff.

The case is now here on the defendant’s bill of. exceptions, and the ■ errors assigned are to the refusal of the court to direct a verdict for the defendant at the close of all the evidence, and' to the court’s failure to properly instruct the jury upon the question of contributory negligence.

At the time the accident occurred, the New Hampshire statute under which this action was brought provided that, in an action for personal injuries sustained by an employé, while engaged in manual labor in an employment of the character here in question, it should not be a defense that the injury was caused by the negligence of a fellow employé, or that the employé assumed the risk of injury, and that the burden of proving contributory negligence should be upon the defendant. Boody v. Co., 77 N. H. 208, 90 Atl. 859. We are of the .opinion that the first assignment of error cannot be sustained.

We have examined the evidence as to the defendant’s negligence and the plaintiff’s freedom from fault, and, without going into a detailed discussion of it, it seems to us that — inasmuch as it appears the plaintiff was a boy 16 years of age, that he had had little or no experience about machinery, that he was acting in the performance of his duty in attempting to remove the waste from the hickey roll, that he had seen others, including the servant who was delegated to instruct him as to the method of doing his work, remove waste with their hands from the cards while they were in motion, that he had not been warned of the danger of doing the work in this way, or instructed as to any other method or way of doing it, that the machinery was complicated, that he had worked about the machines but a brief period, and that he was injured on his first attempt to remove the waste from the hickey roll — the trial court was fully justified in submitting the case to the jury.

Lapelle v. Paper Co., 71 N. H. 346, 51 Atl. 1068; Disalets v. Co., 74 N. H. 440, 69 Atl. 263; Goodale v. York, 74 N. H. 454, 69 Atl. 525; Driscoll v. Rolfe, 75 N. H. 586, 71 Atl. 379; Lane v. Manchester Mills, 75 N. H. 102, 71 Atl. 629.

The second error complained of arises on the defendant’s exception to the charge of the court to the jury, wherein he said: “If you should find that the defendant was careless in not discharging its duty in respect to giving sufficient instructions to the hoy, and you should find the hoy was heedless, that they were heedless because at fault in not sufficiently impressing upon the boy’s mind the dangers, his heedlessness, cooperating tinder such circumstances as that, would not prevent his recovering, because the injury would not be the sole result of the fault of the boy.

There would be the fundamental fault of the defendant in not giving the boy proper instructions.” This instruction is manifestly erroneous. It is a statement of the doctrine of comparative negligence which is not a part of the common law of New Hampshire, nor in any way recognized by the provisions of the act under which this action is brought. It allowed the jury to find a verdict for the plaintiff, notwithstanding they might find that he was negligent and that his negligence contributed to his injury.

The judgment of the District Court is reversed, the verdict is set aside, and the case is- remanded to that court for further proceedings not inconsistent with this opinion; and the plaintiff in error recover? its costs in this court.