Benson v. N.Y., N. H. & H. R. Co.

• Decision Date: 01 July 1901
• Citation: 23 R.I. 147,49 A. 689
• Court: Rhode Island Supreme Court
• Parties: BENSON v. NEW YORK, N. H. & H. R. CO.

49 A. 689

23 R.I. 147

BENSON

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Rhode Island.

July 1, 1901.

Appeal from court of common pleas, Providence county.

Action by James H. Benson against the New York, New Haven & Hartford Railroad Company. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

David S. Baker, for appellant.

John W. Hogan, for appellee.

ROGERS, J. This is a petition for a new trial by the defendant in an action on the case for negligence after a verdict by a jury for the plaintiff for $10,000. The grounds of the petition are that the verdict was against the evidence and the weight thereof; that the presiding justice erred in the admission and rejection of certain evidence; that he erred also in his instructions to the jury, and in refusing instructions requested by the defendant; and that the damages awarded were excessive.

More particularly stated, the principal questions arising in the case relate to the proper standard by which to determine whether the appliances and instrumentalities —in this case a freight car—furnished by an employer to an employe are reasonably safe and suitable, and the evidence properly admissible to prove it; also whether the admission of evidence showing the relative condition of repair of running boards in comparison with the roofs of freight cars in general off the running board, as bearing on the question of contributory negligence, is proper.

The plaintiff was a freight brakeman and yardman, and had been in the employ of the defendant for ten years, seven of which he was in the Fall River freight yard, one year nights and the remainder days; then for a year running on the road on a freight train from Fall River and Brockton up as far as Blackstone; and the remaining two years here in Providence, thirteen months of which was in the India Point yard on night duty. When he left Fall River and came to Providence, in 1896, he represented himself to be, and was hired as, an experienced brakeman. The accident in which he was injured, and for which he brought this action, occurred on November 19, 1898, at 1 o'clock at night, when it was dark and stormy, and when he was occupied in making up a train of freight cars. The method of proceeding was to place the "buggy," or caboose, which is always the rear car of the train, and then add freight cars until the train was complete. A switching engine and crew fasten on to the cars in the order desired, on whatever track they may be, and haul them on to the maintrack, that being the track on which the train was being made up. After the cars attached to the switcher had passed eastward a little distance over the switch from the side tiack to the main track, the switcher with the cars stopped, the switch was thrown so that if the cars should be pushed westward over the main track they would run down to the caboose, the pin between the switcher and the freight car next to it was pulled, thereby disconnecting the cars from the switcher, so that when the switcher backed it pushed the cars westward far enough to give them the necessary impetus; and though it stopped when they had gotten sufficient speed on, yet the cars, having been disconnected from the engine, kept on until they were stopped by the use of a brake, as their stopping place was the caboose, care being necessary to reduce the speed so that they would not collide with or bump the caboose too hard. When the accident happened the switcher had fastened onto four box freight cars, and hauled them eastward on to the India Point bridge, as the location of the switch necessitated taking the cars on to it to clear the switch. The head brakeman, one Welcome, was on the car next to the switcher, and the plaintiff was the hind brakeman, and was on the next car in the rear, or the next car but one to the switcher, and two other freight cars were in the rear of the car the plaintiff was on. When the rear car going eastward had got sufficiently clear of the switch, the plaintiff gave Welcome the signal to pull the pin and disconnect with the engine, which he did, as it was his duty to do, getting off the cars to do it, and leaving the plaintiff alone on the cars. The plaintiff then gave the engineer the signal to back down, or "kick," as it is called, which he did, thus causing the four cars to go westward to connect with the caboose. The plaintiff then started on a kind of trot, to use his own expression, to the west end of the cars, as they were proceeding westward, to get the best possible view of the caboose and the diminishing intervening distance, and to use the brake nearest that end so as to discharge his duty most efficiently. The plaintiff did not use the "running board," as it is called, which is about 18 or 20 inches wide, extending down the middle of the whole length of the car, and with which all cars are equipped, but ran along some distance one side of it it being a stormy night, he had on rubber boots and an ulster overcoat, which had been shortened somewhat, and he also carried a lighted lantern, for the double purpose of enabling him to signal as well as to see. When he reached the end of the car he was on, and stepped out with his right foot, expecting to reach the next car, he failed to do so, and fell between the cars, being dragged a number of yards, and then fell to the ground, resulting in the wheels of the car from which he had stepped running over his leg, necessitating amputation about half way between the ankle and the knee.

The duty owed by the defendant to the plaintiff, the violation of which it is claimed" caused the accident, the plaintiff's declaration in its first count alleges to be to furnish and provide freight cars that were safe for use in the nighttime by the plaintiff in performing his work and labor as a brakeman, and to keep and maintain the same so safe and suitable for the purpose aforesaid; and, in the second count, to furnish, provide, keep, and maintain such freight cars so used and run by the defendant in making up its freight trains for use in the nighttime by the plaintiff in a reasonably safe and proper condition, so that the plaintiff would not be exposed to any unusual or unnecessary risk or danger. There was no dispute as to the construction of the car onto which the plaintiff started to step when he fell, and the defendant's furnishing a car so constructed constituted the alleged failure of duty of which the plaintiff complained as causing the Injury. The floor and the roof of that car, being freight box car No. 11,487, extended beyond the end walls of the car, so that the roof formed a hood, and out of the diagonal corners of the roof, being the left-hand corner as one stood in the middle of the car and looked towards either end, a square piece seemed to have been cut out 18 1/2 inches long, measuring lengthwise of the car, and 23 1/2 inches wide, measuring crosswise of the car. This feature of the car was an intentional one, being a part of the original construction; the hood at each end of the car not extending way across the end, but only to within 23 1/2 inches of the end, so that, using a ladder placed at the end of the car against the end wall, one could go up and down to and from the car top without being interfered with by the hood. The car, therefore, was not defective in the sense that any part was missing or deranged that was intended to be there or that formed a part of the original design.

It is a rule of law, so familiar as hardly to need the citation of authorities, that the duty of the master is to provide for his employes a reasonably safe place in which to work, and reasonably safe appliances and instrumentalities for the performance of the work. Brodeur v. Valley Falls Co., 16 R. I. 448, 450, 17 Atl. 54; McGar v. Worsted Mills, 22 R. I. 347, 350, 47 Atl. 1092. Of course, the suitableness of place and instrumentalities is to be taken in connection with the work to be done and the workmen to do it. The plaintiff was an experienced brakeman, was employed and paid as such, and had been in the defendant's employment for 10 years. He was accustomed to work at night in making up trains, and he knew that there was a great variety of difference in freight cars, as shown by the record of his testimony, viz.: "C. Q. 635. You have other cars—flat cars— frequently, do you not? Ans. Yes, sir. C. Q. 636. You have them right along all the time? Ans. Yes, sir. C. Q. 637. Liable to have them in the night just the same? Ans. Yes, sir. C. Q. 638. You knew that night these were all box cars? Ans. Yes, sir. C. Q. 639. How did you know they were all box cars? Ans. I heard somebody in the office say, 'Get the four head box cars.' C. Q. 640. Who did they say it to? Ans. I cannot say. C. Q. 641, if you hadn't been in the office at that time you wouldn't have known, if you hadn't heard, that there were four box cars? Ans. No. I don't know. C. Q. 642. There was no way— You were not told— You were told to hook on and shove them out. You were not told as a rule that you were to go,—told that they were a certain kind of cars? Ans. Not always. C. Q. 643. You got on at seven that night, and happened to be in the office, and hearing some one say so; otherwise, you wouldn't have known they were all box cars? Ans. I wouldn't know whether they were all box cars or not; no. C. Q. 644. If you hadn't heard this man in the office say, 'Get out these cars,' and you hadn't happened to be in the office, you would have got out about the yard, and gone to work, not knowing these were all box cars? Ans. Yes, sir. C. Q. 645. There might have been some flat cars, and you not know it? Ans. Not if I hadn't seen them. C. Q. 646. You wouldn't have known from anybody else telling you? Ans. No, sir. O. Q. 647. Frequently, in making up this train, there's all kinds of cars,—different heights? Ans. Different heights; everything of that kind,—flat cars and box cars. C. Q. 648. Flat cars and box cars? Ans. Yes, sir." He...