For present purposes it must be assumed that it was the legal duty of the defendants to prepare and move the staging for the plaintiff, and in such manner that it would be and remain in a reasonably safe condition; that notwithstanding this duty, the defendants so moved the staging, just previous to the plaintiff's injury that one of the planks was insecurely placed; that the plaintiff had no actual knowledge that the plank was misplaced, or of the danger arising from it, and had no opportunity for knowledge other than that afforded by the circumstances attending his approach to the danger at the very time of his injury; that during this brief interval his attention was preoccupied with his own peculiar duties as the defendants' servant.
Upon these facts we are asked to say, as a matter of law, that the plaintiff ought to have discovered the danger occasioned by the misplaced plank, and avoided it. It is indeed settled, at least *Page 176 in this jurisdiction, that actual knowledge of the danger is not necessary to bar recovery. The rule in this respect was clearly stated by Carpenter, J., in Nashua Iron and Steel Co. v. Railroad, 62 N.H. 159, 162, as follows: "The result is the same whether the plaintiff acts with full knowledge of the danger, or, by reason of a want of proper care, fails to discover it seasonably. If he is not bound to anticipate, and in advance provide for, another's negligence, he may not willfully or negligently shut his eyes against its possibility. He is bound to be informed of everything which ordinary care would disclose to him. He can no more recover for an injury caused by driving into a dangerous pit, of which he is ignorant, but of which ordinary care would have informed him, than for one caused by carelessly driving into known pit." But in the application of this rule to the relation of master and servant, it is to be borne in mind that where, as is expressly found in the present case, and as is the general rule, it is the duty of the master to provide the servant a safe place and safe appliances, the servant is not bound to inspect to see whether the master's duty in this behalf has been performed, but may, without being subjected to the consequences of contributory negligence, proceed with his work, relying upon the presumption that it has been performed, unless the circumstances are such that, notwithstanding the duty of the master and the presumption of performance in favor of the servant, the servant ought in the exercise of ordinary care to discover the master's default and avoid the danger arising from it. Hutchinson v. Railway, 5 Exch. 343; Union Pacific R'y v. Jarvi, 53 Fed. Rep. 65, 68, 69; Norman v. Railroad, 62 Fed. Rep. 727, 728, 729; Clow v. Boltz, 92 Fed. Rep. 572, 574, 575; Northern Pacific R. R. v. Everett, 152 U.S. 107; Whitcher v. Railroad, 70 N.H. 242; Hennessy v. Boston, 161 Mass. 502; Bartholomeo v. McKnight, 178 Mass. 242; Whipple v. Railroad, 19 R. I. 587; Comben v. Company, 59 N. J. Law 226; Cole v. Company, 63 N. J. Law 626; Chicago etc, R. R. v. Hines, 132 Ill. 161; Chicago etc. R. R. v. Cullen, 187 Ill. 523; Russell v. Railway,32 Minn. 230; Cook v. Railway, 34 Minn. 45; Gibson v. Railroad, 46 Mo. 163; 14 Am. Eng. Enc. Law (1st ed.) 854, 855; Shearm. Red. Neg. (2d ed.) 95.
Having in mind that it was the defendants' duty to make and keep the staging reasonably safe for the plaintiff; that the plaintiff had the right to presume that this duty had been performed by the defendants; that the plaintiff had no actual knowledge of the defendants' default in respect to the misplaced plank, and no opportunity for knowledge other than that afforded by the immediate circumstances and occasion of the injury, and while he was preoccupied with his own duties, the court would hesitate to say, *Page 177 even were it the court's province, that the plaintiff ought in the exercise of ordinary care to have discovered the danger. Much less can the court say that it is so clear that the plaintiff ought to have discovered the danger that impartial men, acting as jurors, could not reasonably have found otherwise.
Whether the plaintiff ought to have discovered the danger was, under the circumstances, a question for the jury. The refusal of the court to direct a verdict for the defendants was therefore properly denied. This conclusion is as well supported by authority as it is sound in reason. Kane v. Railway, 128 U.S. 91; Snow v. Railroad, 8 Allen 441; Ferren v. Railroad,143 Mass. 197; Babcock v. Railroad, 150 Mass. 467; Gustafsen v. Company,153 Mass. 468; Hannah v. Railroad, 154 Mass. 529; Donahue v. Railroad,178 Mass. 251; Plank v. Railroad, 60 N.Y. 607.
Exception overruled.
All concurred.