Among the risks which Miller assumed on entering the defendants' service as a freight brakeman were those incident to the performance of his duties, of which he was informed, or would learn in the exercise of ordinary care. Henderson v. Williams, 66 N.H. 405; Hardy v. Railroad, 68 N.H. 523; Allen v. Railroad, 69 N.H. 271; Whitcher v. Railroad, 70 N.H. 242.
Assuming the truth of the plaintiff's evidence and construing it most favorably for him (Hardy v. Railroad, supra), it does not *Page 332 seem to us that it conclusively appears that Miller's death was caused by dangers of which he assumed the risk, within the rule above stated. The accident occurred at night, on the deceased's first trip over the road as a brakeman on a freight train from Woodsville to Concord. The rules of the road required him to be on top of his train when approaching and passing through station yards. As his train approached the Tilton yard, it had become dark. Miller then took his lantern and proceeded to ascend the ladder at the front end of the saloon car. In doing so, the jury found, and the evidence warranted their conclusion, that he passed up between a telltale and an overhead bridge that crossed the road in the vicinity of the yard, and, on reaching a position within the plane of the bridge, the lower timbers of which were about four feet above the top of the car, was struck by the bridge in the back of the head, just above the ear, and killed. He was not informed by the defendants when he entered upon this service of the location and dangerous character of the bridge, or that the performance of his duties while passing through this yard was attended with special danger. He had been over the road previously as a brakeman on a passenger train, but his duties while acting in that capacity did not subject him to danger from overhead bridges, or require him to take notice of their particular location or their height. From this evidence it could be found that a knowledge of the location and height of the Tilton bridge and an appreciation of the danger arising therefrom were essential to his safety in the performance of his duties; that he did not know of the particular location and height of the bridge and appreciate the dangers thereof; that in the exercise of ordinary care, either in his previous employment or that in which he was then engaged, he would not necessarily learn of them and appreciate the dangers; that the defendants were negligent in not informing him; and that his injury was due to their failure in this respect.
Although the burden of proof was upon the plaintiff to show that Miller was in the exercise of due care when he ascended the ladder, and there was no direct evidence disclosing his conduct at that time, nevertheless the exercise of such care could have been found from the circumstantial evidence that was introduced. Lyman v. Railroad, 66 N.H. 200; Hutchins v. Macomber, 68 N.H. 473. And as there was no evidence that Miller was insane, intoxicated, or possessed of suicidal intent, it could be inferred from the ordinary habits and dispositions of prudent men and the instinct of self-preservation, taken in connection with the other circumstantial evidence in the case, that he was in the exercise of due care, and that his attempt to ascend the ladder at this time and place was due solely to his inadequate understanding of the *Page 333 risk. Huntress v. Railroad, 66 N.H. 185, 190; Lyman v. Railroad,66 N.H. 200, 202; Murray v. Railroad, 72 N.H. 32, 39.
The exclusion of the defendants' evidence that they assumed Miller knew of the location and height of the bridges on the road and the dangers arising therefrom was not harmful to them. Such an assumption, if proved, would not be a defence to the action. It was the defendants' duty to instruct Miller in regard to these matters, or excuse themselves by proof that he knew of them or represented that he knew of them, and that they relied thereon.
If the report of the railroad commissioners that was offered in evidence related to the telltale under which the car passed before reaching the bridge, the defendants were not harmed by its exclusion, for no claim was made by the plaintiff that the telltale was defective, or that Miller's injury was in any way caused by it. The evidence was not material to any issue in the case and was properly excluded.
It was competent for the plaintiff's counsel to argue from the fact that Miller was killed the first time he went over the route, taken in connection with the other evidence showing the manner in which the accident occurred, that the jury could infer he did not know of the danger to which he was subjected. Murray v. Railroad, supra.
The sixth and sixteenth requests for instructions were properly denied. They presuppose that there was no evidence from which it could be found that Miller's injury was due to his being struck by the bridge, rather than to his having slipped and fallen, or to some other cause for which the defendants were not responsible. If such had been the situation, the court should have taken the case from the jury (Deschenes v. Railroad,69 N.H. 285, 290); but, as we have seen, there was such evidence, and the jury were instructed that the plaintiff could not recover unless Miller's injury was due to his being struck by the bridge. An instruction that they could not find a verdict for the plaintiff upon mere guess or conjecture was unnecessary.
The ninth and tenth requests were given in substance, for the jury were told that to entitle the plaintiff to recover they must find "the sole cause of Miller's injury was the failure of the defendants to use ordinary care to warn him of being struck by the bridge."
The twelfth request stands upon the same ground as the evidence that was excluded relating to the right of the defendants to assume that the deceased knew of the dangerous character of the bridge, and does not require further consideration.
Exceptions overruled.
All concurred. *Page 334