On Rehearing.
ANDERSON, Circuit Judge.On rehearing, the attention of the court is sharply directed to the fact that the defendant expressly accepted the New Hampshire Workmen’s Compensation Act *1000(Pub. Laws N. H. 1926, c. 178). This aet reserves, in section 11, to the employee or his legal representative, an action at law for damages or death caused by negligence. It is clear that this aet applies to actions for negligence occurring in New Hampshire, and that its acceptance binds the defendant in this action of tort. We are also satisfied that we were in error in our previous holding, and that no contract maje in Vermont purporting to release an employer from liability for future negligence can bar an action brought in New Hampshire for an injury there sustained, and thus change the public policy of New Hampshire. See Saloshin, Adm’x, v. Houle (N. H.) 155 A. 47, decided May 5, 1931. It follows that on both grounds the former decision of this court must be reversed.
This disposes of the defendant’s main reliance.
The other assignments of error call for but brief discussion. There was evidence tending to show that at the time of his death on July 30, 1926, the decedent, 21 years old, had been employed for about two years by the defendant as a lineman; that he had had no technical training in electricity; that in the early summer of 1926 the defendant extended its lines in New Hampshire and made material alterations in the Haverhill substation where Clapper was electrocuted; that these changes left that substation as the only one of seven in which there was no switch which would “kill” or make the entire station safe for employees to work thereon; that, as the result of a thunder shower on the night of July 30, Clapper went to this substation to replace an apparently blown-out fuse; that he threw the old switch, with which he was familiar, apparently assuming that he would thus make the station safe for his work; that shortly thereafter he was heard to groan, and that his body was found electrocuted; that, in order to make that substation entirely safe, it was necessary to use a disconnecting switch at Newbury, on the Vermont side.
While the evidence was somewhat conflicting, the crucial questions of defendant’s negligence in exercising reasonable care to provide a sufficient disconnecting switch at the Haverhill substation, and/or to give to the decedent adequate warning of the danger of reliance on the old switch, were plainly questions of fact for the jury.
The charge to the jury was accurate and adequate. The defendant pleaded the decedent’s contributory negligence and assumption of risk as affirmative defenses; on elementary principles, the burden was on it to sustain these pleas. Lake Shore, etc., Ry. v. Felton (C. C. A.) 103 F. 227, 230; McCoy v. Rhodes, 11 How. 131, 136, 13 L. Ed. 634; Jefferson Hotel Co. v. Warren (C. C. A.) 128 F. 565, 567; Inland, etc., Co. v. Tolson, 139 U. S. 551, 557, 558, 11 S. Ct. 653, 35 L. Ed. 270. Compare also Kanawha Co. v. Kerse, 239 U. S. 576, 580 et seq., 36 S. Ct. 174, 60 L. Ed. 448; Severn v. Philadelphia Co. (C. C. A.) 281 F. 784, 786; Jacobs v. Southern Ry. Co., 241 U. S. 229, 235, 36 S. Ct. 588, 60 L. Ed. 970; Seaboard Air Line v. Horton, 233 U. S. 492, 503, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; 45 USCA § 54 and eases cited. See also B. & O. R. R. v. Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772; McPeck v. Cen. Vermont R. R. (C. C. A.) 79 F. 590, and eases cited; Hawkins v. Bleakley (D. C.) 220 F. 378, 381.
Finding no prejudicial error, the judgment below must be affirmed.
The judgment of the District Court is affirmed, with interest and costs.