Allen v. Boston & M. R. Co.

• Decision Date: 11 March 1898
• Citation: 69 N.H. 271,39 A. 978
• Parties: ALLEN v. BOSTON & M. R. CO.
• Court: New Hampshire Supreme Court

39 A. 978

69 N.H. 271

ALLEN

v. BOSTON & M. R. CO.

Supreme Court of New Hampshire. Hillsboro.

March 11, 1898.

Exceptions from Hillsboro county.

Action by Benjamin M. Allen against Boston & Maine Railroad Company for damages sustained by a collision with an overhead bridge on defendant's road, in Massachusetts, while employed as brakeman. Verdict for defendant Plaintiff brings exception. Overruled.

George B. French and Burnham, Brown & Warren, for plaintiff.

Oliver E. Branch, Charles H. Burns, and William H. Sawyer, for defendant.

CHASE, J. The Massachusetts decisions upon the question before the court are the same, in effect, as those of this state, namely, that a servant assumes the perils incident to his service of which he is informed or which ordinary care would disclose to him. Lovejoy v. Railroad Corp., 125 Mass. 79, 82; Goodnow v. Emery Mills, 146 Mass. 261, 267, 15 N. E. 576; Scanlon v. Railroad Co., 147 Mass. 484, 487, 18 N. E. 209; Myers v. Iron Co., 150 Mass. 125, 134, 22 N. E. 631; Lothrop v. Railroad Co., 150 Mass. 423, 424, 23 N. E. 227; Gleason v. Railroad Co., 159 Mass. 68, 34 N. E. 79; Goldthwait v. Railway Co., 160 Mass. 554, 36 N. E. 486; Goodes v. Railroad Co., 162 Mass. 287, 38 N. E. 500; Fifield v. Railroad Co., 42 N. H. 225, 240; Henderson v. Williams, 66 N. H. 405, 23 N. E. 365; Hardy v. Railroad Co. (N. H.; not yet reported). It is therefore unnecessary to consider whether the case is governed by the law of that state or of this.

The plaintiff was a servant of the defendant. He was 28 years old, and had no physical disability. He had worked upon railroads four years or more,—one year in a yard assisting in making up trains, and the rest of the time as a brakeman upon freight trains. He was familiar with the dangers incident to such service, including that arising from the existence of low bridges upon the road. He understood the office of bridge guards or telltales. In the course of his experience he had frequently been warned of his nearness to a dangerous bridge by such devices. He supposed low bridges generally had guards near them. July 22, 1895, he was assigned to a local freight train running between Nashua and Boston for the purpose of learning the road, with a view of becoming a brakeman on that line. He had never worked there before. He was told that there were low bridges upon the road, and that he must look out for them. The road has two tracks, the westerly one being used by trains passing from Nashua to Boston, and the easterly one by trains passing in the opposite direction. Near the South Wilmington station, in Massachusetts, there is a highway bridge 16 feet wide, resting upon abutments 25 feet apart and 15 feet 5 inches above the track. It is painted white, and there is nothing to obstruct its view from one approaching it on the railroad from either direction. The only tracks under the bridge are the main tracks. A track extending from one main track to the other starts in a southerly direction at a point 239 feet southerly of the bridge. There is a side track on the easterly side of the line, which is connected with the easterly main track a short distance southerly of the same point. There is a suitable telltale over the westerly main track, 99 feet northerly of the northerly side of the bridge, and a like telltale over the easterly main track at the same distance from the south side of the bridge. There is no telltale over the westerly track on the south side, or over the easterly track on the north side. The plaintiff did nothing on the first day at this place that specially directed his attention to these facts. On the trip towards Boston the second day the train was divided near the northerly side of the bridge for the purpose of taking some cars into the train that were standing on the side track. Several of the rear cars were left on the westerly track, some extending under the bridge. The locomotive, with three to five cars attached, went to a point southerly of the cross-over track, backed over that track onto the easterly main track, went southerly on the latter track to a point near the southerly end of the string of cars standing on the side track, and pushed those cars out on to the easterly main track by placing a stake between the southerly end of the most southerly one and the northerly end of the most northerly car attached to the locomotive, and backing. Sufficient momentum was thus given to the cars to send them to a point 50 to 150 feet northerly of the bridge. A part of the cars attached to the locomotive were then thrown onto the side track by a flying switch, and were left there. The plaintiff assisted about this...