Burnham v. Concord & M. R. R.

Decision Date31 July 1896
Citation68 N.H. 567,44 A. 750
PartiesBURNHAM v. CONCORD & M. R. R.
CourtNew Hampshire Supreme Court

Case reserved from Hillsboro county.

Action by Henry E. Burnham, administrator, etc., against the Concord & Montreal Railroad. Judgment in favor of plaintiff. Case reserved. Reversed, and Judgment ordered for defendants.

Case, for injuries to the plaintiff's intestate, John B. Duquette, from an unblocked guard rail on November 24, 1891, resulting in death on November 26, 1891. Trial by jury. The evidence tended to prove the following facts: At the time of the accident, Duquette was employed by the defendants as one of a switching crew in the defendants' railroad yard at Nashua, and had been so employed for about two months, working in the nighttime, from 6 p. m. to 6 a. m. His usual work was coupling cars. On the night of the accident, the foreman being absent, he was placed in charge of the crew. In attempting about midnight to pull the pin for the purpose of uncoupling a car, he stepped between two moving cars, caught his foot in an unprotected guard rail, was thrown down, and injured. There were some 200 similar opportunities for like accidents in the yard from switches, frogs, and guard rails, none of which were blocked. In an adjoining yard of another railroad company all such constructions were protected by blocking. There was evidence tending to show that Duquette, in the course of his employment, had not coupled cars before in the part of the yard where he was injured. At the close of the evidence the defendants' motions for a nonsuit and that a verdict be directed for them were denied, subject to exception. The only question submitted to the jury was whether Duquette knew of the dangerous condition which caused his injury, or in the exercise of ordinary care could have known of it.

Burnham, Brown & Warren, for plaintiff.

Frank S. Streeter and Joseph W. Fellows, for defendants.

PARSONS, J. The plaintiff seeks to recover damages for injuries alleged to have been received in the course of his service by one Duquette, the defendants' employe, by reason of an unblocked guard rail. The sole ground of defense is that Duquette assumed the risk. The only question submitted to the Jury was whether Duquette knew, or ought to have known, the guard rail was unblocked. The only question which we have considered is whether there was evidence upon which the jury could properly find that Duquette did not know, or in the exercise of due care would not of necessity have known, the guard rail was unblocked. The familiar principle of general acceptation as well as recent decision in this court, that the servant assumes the risk of injury from the perils ordinarily incident to his service, and also from special hazards existing because of the particular means or method used by the master in the conduct of his business, of which the servant is informed, or which ordinary care would disclose to him, is not disputed. Fifield v. Railroad Co., 42 N.H. 225, 240; Nash v. Steel Co., 62 N.H. 406, 408; Bancroft v. Railroad Co., 67 N.H. 466, 30 Atl. 409; Collins v. Car Co., 68 N.H. 196, 38 Atl. 1047. To establish his case, therefore, upon the general issue (negligence in the defendant being admitted or not contested), the plaintiff was bound to prove that the special danger causing the injury was not known to Duquette, and, in the exercise of ordinary care by him, would not have come to his knowledge (Hart v. Lock wood, 66 N.H. 541, 23 Atl. 367; Eastman v. Gould, 63 N.H. 89; Wood, Mast. & Serv. [2d Ed.] § 382; Wood, Ry. Law [1894] § 386); or, in other words, that the risk of injury from the unblocked guard rail by which he was injured was not assumed by him. There...

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18 cases
  • Story v. Concord & M. R. R.
    • United States
    • New Hampshire Supreme Court
    • July 27, 1900
    ...23 Atl. 365; Casey v. Railway Co., 68 N. H. 162, 44 Atl. 92; Hardy v. Railroad Co., 68 N. H. 523, 536, 41 Atl. 179; Burnham v. Railroad Co., 68 N. H. 567, 568, 44 Atl. 750. Although the plaintiff knew that the track was owned, managed, and controlled by the Boston & Maine Railroad, it did n......
  • Yost v. Union Pacific Railroad Co.
    • United States
    • Missouri Supreme Court
    • July 5, 1912
    ...v. Mining Co., 70 P. 1001; Ragan v. Railroad, 56 N.W. 612; Batterson v. Railroad, 53 Mich. 125; Gibson v. Railroad, 63 N.Y. 450; Burnham v. Railroad, 68 N.H. 567; Hayden v. Co., 29 Conn. 548; Sullivan v. Mfg. Co., 113 Mass. 396; Railroad v. Drescoll, 176 Ill. 330; Lemoine v. Railroad, 177 M......
  • Brannock v. St. Louis & San Francisco Railroad Company
    • United States
    • Missouri Court of Appeals
    • March 8, 1910
  • Hercules Powder Co. v. Williamson
    • United States
    • Mississippi Supreme Court
    • October 25, 1926
    ... ... his business. Laverty v. Hambrick (1907), 61 W.Va ... 687, 57 S.E. 240; Burnham v. Concord & M. R. R. Co ... (1896), 68 N.H. 567, 44 A. 750; Hayden v. Smithville Mfg ... Co. (1861), 29 Conn. 548; Rush v. Mo. P. R. R ... ...
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