The question concerning the refusal to give the third instruction requested by the defendant has been argued as though it referred only to one express, unequivocal order given for this particular piece of work. If the request had been so framed as to relate to this order and this alone, there might be force in the arguments advanced. But the request is broader than that. It includes all instructions ever given Willis, and demands a verdict for the defendant if failure to follow any of these instructions in any way caused the accident.
There was evidence not only of the specific instruction for this day's work, but also of general instructions along similar lines. There was also evidence that these general instructions were habitually disregarded, not only by the ordinary workmen, but also by their superior who gave the orders to them. From this it might be found that there was no intention on the part of the master that the instructions should be followed. After he has made a rule or given an instruction, "a practical invitation to violate it may be inferred from habitual usage which is known to him." McNee v. Track Co., 170 Mass. 283. Fair-minded men might conclude that the general instructions were to be followed only in cases where there seemed to be occasion to do so. The jury might conclude that no special instruction was given, and that the general ones were properly interpreted as above indicated. If they so found, they might return a verdict for the plaintiff if it seemed that Willis reasonably concluded that this was one of the occasions when the instructions were not to be followed. 1 Labatt M. S. 514, 945, 961. It was the plaintiff's right to have the case considered upon this theory, as well as upon those more favorable to the defendant. The requested instruction would deprive him of this right, and was properly refused. Ordway v. Sanders, 58 N.H. 132; Chase v. Chase, 66 N.H. 588, 592; Smith v. Bank, 70 N.H. 187, 193; Smith v. Bank, 72 N.H. 4, 10; Minot v. Railroad, 74 N.H. 230, 237.
Rehearing denied.
All concurred. *Page 459