Boston & M.R.R. v. Baxter

• Decision Date: 10 December 1915
• Docket Number: 1138.
• Citation: Boston & M.R.R. v. Baxter, 228 F. 257 (1st Cir. 1915)
• Court: U.S. Court of Appeals — First Circuit
• Parties: BOSTON & M.R.R. v. BAXTER.

228 F. 257

BOSTON & M.R.R. v. BAXTER.

No. 1138.

United States Court of Appeals, First Circuit.

December 10, 1915

Archibald R. Tisdale, of Boston, Mass., for plaintiff in error.

Charles C. Barton, Jr., of Boston, Mas.(Barton & Harding, of Boston Mass., on brief), for defendant in error.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

DODGE Circuit Judge.

The defendant in error (hereinafter called plaintiff) has recovered judgment in the Massachusetts District Court against the plaintiff in error (hereinafter called defendant) for the death of her intestate, Leslie M. Baxter, instantly killed on August 15, 1913, soon after 4 p.m., while in the defendant's employ as fireman on one of its engines, then hauling an express passenger train bound west from Boston, in interstate commerce.Her suit was brought under the federal Employers' Liability Act.ActApril 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1913, Secs. 8657-8665).The plaintiff's right to maintain the suit under that act, if the defendant's negligence caused Baxter's death, was not questioned.

The declaration, in two counts, alleged, in substance: (1) That Baxter was killed by striking the defendant's bridge at Prospect street, Somerville, owing to negligence on its part in its engines, appliances, roadbed, works, and other equipment; (2) that his death was due to negligence on the defendant's part in erecting, constructing, and maintaining said bridge at an insufficient height above the track, and also in other respects further referred to below.

No witness on either side saw the accident happen.Baxter was in the cab of the locomotive with the engineer when the train left Boston at 4:01 p.m.The engineer, who had seen him get down from his seat in the cab before the train had reached the Prospect Street bridge, missed him soon after passing it and stopped the train at Cambridge, a short distance further west.Baxter was then found dead in the back compartment of the tender, behind the pile of coal carried in its forward compartment.The exceptions state that 'a subsequent examination revealed signs establishing the fact that his head had come in contact with the bridge. ' His cap was later found 25 to 30 feet west of the bridge, in the ditch north of the track.There was no witness who saw him alive after he left his seat as above.

The bridge, at its lowest point, was 15 1/2 feet above the track whereon the train was moving; the top of the tender 11 1/2 feet above the track; and the coal carried therein was piled higher than the top of the tender.So much was undisputed.There were differing estimates as to how far above the top of the tender the coal was piled.The ordinary height at the center was testified to be 13 feet above the track-- i.e., 18 inches above the top of the tender--though there was evidence from which the height might have been found to have been 3 feet above the top of the tender, but in no event higher than the top of the cab on the engine, which was 15 feet above the track.No other way appearing in which Baxter could have brought his head where it would strike the bridge after he left the cab and before he was found dead on the tender, the jury might have found that he went from the cab upon the coal in the tender and was somewhere on the coal when struck by the bridge.It was not contended that he would have been outside the line of his duties, had he thus gone from the cab upon the coal.

Since it thus appeared that, without regard to any coal above it the top of the tender could have passed only 4 feet below the bridge, and that the actual clearance available for a man on the coal was necessarily as much less than 4 feet as the coal may have brought him above the top of the tender, the jury might, on the evidence, have found this clearance too small to afford a margin of safety reasonably sufficient under all the circumstances, and might, therefore, have found the defendant negligent, as regarded the safety of an employe whose duties might bring him on the coal, in permitting the tender, so loaded, to be run beneath so low a bridge.There was evidence that, since the bridge was built, the size of engines in use had materially increased, and that this engine and tender were of the largest type then in use in passenger service on that division of the defendant's road.

The accident happened in broad daylight, on a clear day.There were the usual telltales on both sides of the bridge.No question was raised as to their sufficiency.The answer alleged negligence on Baxter's part contributing to his injury and death; but such negligence, under the act, would have been at most matter for the jury to consider in assessing damages, and none of the assignments of error raise any question relating to this defense.The evidence before them would have permitted them to find that he reached a position on the coal which brought his head where it would strike the bridge, after the telltale intended to give warning that the bridge was near had been passed, but before the bridge itself was reached.

Assignments of error 1-4, inclusive, complain of the admission of certain evidence introduced by the plaintiff against the defendant's objection.

(1) A Massachusetts statute(chapter 372, Sec. 87, of the Acts of 1874), offered 'as a matter of evidence that that statute had not been complied with,' was thus admitted.It provides:

'That no bridge for any purpose shall hereafter be constructed over any railroad at a height less than eighteen feet above the track * * * except by the consent in writing of the Board of Railroad Commissioners.'

It was further shown that the board referred to had 'taken no action on the bridge. ' There is no contention that the class of persons in whose favor this statute imposes a duty is a limited class, not including the person for whose injuries recovery is sought, as in N. Y. Central, etc Co. v. Price,159 F. 339, 86 C.C.A. 502, 16 L.R.A.(N.S.) 1103.Had the plaintiff also shown that the defendant constructed this bridge after the statute took effect, a breach of statutory duty on its part would have been shown which might have been evidence of its negligence toward Baxter.Union Pacific, etc., Co. v. McDonald,152 U.S. 262, 283, 14 Sup.Ct. 619, 38 L.Ed. 434.But the plaintiff's evidence did not go so far.It showed that the bridge was in existence in 1850; and the only evidence having any tendency to show subsequent rebuilding or reconstruction was that of a civil engineer in the defendant's employ, who testified that the planking of such a bridge has to be renewed as often as every 10 or 12 years, that the stringers wear two or three times as long, and that in most cases the superstructure would have to be renewed in a period of 40 years.This evidence also was admitted against objection.Conceding that it might...