In considering the questions raised by the defendants' motions for a nonsuit and a verdict, the plaintiff is entitled to the most favorable construction of the evidence that can be given it. Stevens v. Company,73 N.H. 159, 163. When so construed, it appears that the coke cars upon which the plaintiff had worked prior to his injury, the measurements of which were known to him, did not exceed eight feet eight inches in width, and that some of them were not wider than eight feet two inches; that the space between such cars and the shop door, in which a man would have to walk in pushing them into the shop over track No. 8, was anywhere from eleven and a half to seventeen and a half inches; that the plaintiff and other workmen had customarily pushed these cars into the shop over this track, and in doing so had safely passed between the car and the door; that the defendants also had other coke cars which were similar in appearance, but which were in fact about a foot wider than those upon which the plaintiff had worked; that he was not aware of these facts, and no one had informed him that the car upon which he was set to work at this time belonged to that class; that he had no opportunity to measure its width, and that during a part of the brief interval he was pushing the car his view of the shop door was obstructed by a workman, and the balance of the time his work required him to take such a position, and his attention was so preoccupied in endeavoring to void obstacles in his path *Page 62 beside the track, that he did not learn of the danger to which he was subjected until he was caught between the car and the door. It also appears that the defendants knew, or ought to have known, that it was customary for the men, in pushing cars into the shop, to pass between the car and the door; and that they knew, or ought to have known, of the extra width of this car and the danger to be encountered in pushing it into the shop by one standing at its side, and failed to inform the plaintiff of it. Under these circumstances, reasonable men might properly conclude that the defendants were negligent in not informing the plaintiff of the danger; that he exercised the care of a reasonably prudent man in doing what he did; and that he did not know and appreciate the danger to which he was subjected and assume the risk of injury.
The defendants, however, contend that the plaintiff knew the space between the car and the door was insufficient to permit him to pass in safety, and that he learned of this fact and of the fact that his clothes had become attached to the car at the time he passed over the horse. But if it be conceded that there was evidence from which these facts could have been found, the jury as reasonable men were not bound to take this view of the case, and their verdict clearly demonstrates that they did not. It is also urged that the plaintiff could have avoided being injured after he reached the door had it not been for the fact that his clothes had become attached to the car; that his injury was due solely to this circumstance, the occurrence of which he assumed as a risk incident to his employment. Whether the plaintiff could have avoided being injured after he reached the shop door, had his clothing not become attached to the car, is clearly a question of fact. But if upon the evidence the jury should have found that the plaintiff could have avoided being injured had his clothes not become attached, and also should have found that he assumed the risk of injury from his clothes becoming attached to disabled coke cars of the standard width (eight feet and eight inches) while pushing them into the shop, it cannot be said, as matter of law, in view of the plaintiff's lack of information, that he assumed the risk of being injured upon a car of greater width (nine feet and five inches), which rendered his entrance into the shop in the customary way dangerous. The solution of the matter rather is, that the jury were justified in finding that the defendants ought to have anticipated that the plaintiff would take a position at the side of the car, that his clothes would become attached, and would be injured. It is apparent that if the defendants had warned him of the danger, he could have provided against it by taking a different position upon the car, or by taking some *Page 63 other precaution, and that their failure to do so was properly found to be the legal cause of his injury. The fact that his clothing became attached to the car was, under the circumstances here presented, a mere condition upon which the cause acted to produce the plaintiff's injury. Harriman v. Moore, 74 N.H. 277, 281; Brown v. Railroad, 73 N.H. 568, 573, 578; Ela v. Cable Co., 71 N.H. 1, 3, 4.
The passage read by the plaintiff's counsel from the minutes of his argument was a statement of a general proposition of law governing the relation of master and servant, and did not introduce into the case any evidentiary matter which could not be, or had not been, proved. Counsel may properly state his view of the law applicable to the facts as claimed by him to be proved, and that is all that was done in this instance. Olney v. Railroad, 73 N.H. 85. If this statement was erroneous as a proposition of law, it does not appear that the court either expressly or tacitly confirmed it; and where such is the case a verdict will not be disturbed. Story v. Railroad, 70 N.H. 364, 376; Dow v. Electric Co., 68 N.H. 59.
The second exception to the argument of the plaintiff's counsel is also without merit. So far as the statement excepted to was one of fact, it was supported by the evidence; and so far as it was a matter of law, it was correct. Abbott was the representative of the railroad company who assigned the plaintiff to do this particular kind of work. He had long been in the employ of the railroad, knew the width of the car and the door, and knew or ought to have known that the plaintiff could not safely pass into the shop at the side of the car. His knowledge was the railroad company's knowledge, and as its representative in charge of the work it was his duty to warn the plaintiff of the danger, if a warning was necessary. Jaques v. Company,66 N.H. 482; Lintott v. Company, 69 N.H. 628, 632; Lapelle v. Company,71 N.H. 346. What is said about this exception applies to the one taken to the last request of the plaintiff, which the court gave in his charge to the jury. In both the action of the court was right.
Upon the question of assumed risk the jury were instructed at length in the most painstaking manner, the burden of the instruction being that the plaintiff upon entering the defendants' employment assumed the risk of injury from all dangers of which he knew, or which ordinary care would reveal to him; that if he knew or ought to have known of the danger of being caught between this car and the door, and appreciated the risk when he had the opportunity of free choice, he could not recover; but that if he did not know of it, and did not appreciate it until it was too late to get away from the danger, then he did not assume it. No *Page 64 exception was taken to this charge, but one was taken to a special instruction which was given at the plaintiff's request, as follows: "I have told you he did not assume the risk if he did not know of it in season to avoid it. If, as soon as he did see the danger and appreciate it, he was in such a situation that he could not avoid it, why then of course he did not assume it and was not in fault." The first objection urged is that the first sentence in this instruction does not contain the qualification, "or if by the exercise of ordinary care he would not have discovered it." It is true that this qualification is essential to a complete statement of the legal proposition; but as it had been given over and over again in the general charge, we do not think the jury could have been misled by its omission from this sentence. Saucier v. Spinning Mills, 72 N.H. 292. The balance of the instruction is correct. Olney v. Railroad, 71 N.H. 427, 431; English v. Amidon, 72 N.H. 301, 302, 303.
Exceptions overruled.
PARSONS, C. J., and YOUNG, J., dissented: the others concurred.