Opinion
No. 3998.
March 6, 1951.
A request for instructions upon an issue not supported by the evidence is properly refused.
CASE, for negligence to recover for personal injuries alleged to have been received by the plaintiff as employee of the defendant. Trial by jury with a verdict for the defendant.
The plaintiff claims that she was injured on the 13th day of May 1946 when, as part of her work, she was moving window sashes from one room to another on a small truck called a sash flat. This sash flat is an open wooden platform consisting of a rim of 1" x 4" boards with a caster-like wheel at each of the four corners. Ordinarily sashes are moved on a sash flat by two persons; one in front steadying the front part of the load, another pushing from behind. If in so doing an object which obstructs the wheels is encountered, the person in front inserts an iron hook under the sash flat behind a board or cross bar nailed across its front end and lifts the front wheels enabling the person behind to push the load over the obstruction. If one person alone is to move a sash flat it is done by inserting this hook under the front cross-bar thereby pulling the load along.
Plaintiff claims that on the day of the accident she was thus pulling a load alone when the hook pulled off a piece of the cross bar causing her to fall and receive the injuries complained of.
Her writ sets out two claims for recovery: (1) failure of the defendant to furnish her with a suitable truck, suitable tools and appliances, (2) failure to instruct her in the performance of her duties.
Plaintiff's counsel filed no requests for instructions before the Court's charge. After the jury had been instructed he presented to the Court the following written requests, viz: (1) "That it [the jury] might find the defendant negligent if defendant failed to inspect the tools and appliances which it furnished for plaintiff's use, (2) That the duty of inspection was the defendant's and not the plaintiff's, (3) That it might find the defendant negligent in allowing the plaintiff to continue to do her work in an obviously unsafe manner, (4) That it might find the defendant negligent in directing the plaintiff to do her work in an unsafe manner."
Plaintiff's exceptions to the Court's refusal to so charge were reserved and transferred by Grimes, J.
Other facts appear in the opinion.
Leonard Leonard and Richard M. Ryan (Mr. Ryan orally), for the plaintiff.
Alvin A. Lucier and Sullivan Gregg (Mr. Lucier orally), for the defendant.
To warrant an instruction thereon, an issue must be supported by the evidence. Lindberg v. Swenson, 95 N.H. 184, 186; 3 Am. Jur. 630. Plaintiff's first two requests related to defendant's duty to inspect the tools and appliances furnished her. The only evidence in the record relating to inspection is the testimony of one Smith, a former employee of the defendant, who testified on behalf of the plaintiff as follows: "Q. When you were there [1942, 1943, 1944] did you ever see any inspection made of the trucks while they were in use? A. Not that I know of, no." There is no evidence as to how much use if any the sash flat in question had received prior to the accident nor does it appear that the accident was caused by any defect which would have been discoverable by inspection. The Court's refusal to instruct in accordance with these two requests was therefore proper and plaintiff's exceptions thereto are overruled. Lindberg v. Swenson, supra.
Plaintiff's other two requests, insofar as they were warranted, were sufficiently covered by the Court's charge as to the type of tools and instrumentalities which the defendant is required to furnish and the instructions and warnings which it is required to give to its employees.
The order must therefore be
Judgment for the defendant.
All concurred.