Castonia v. Maine Cent. R. R

• Decision Date: 06 February 1917
• Citation: 78 N.H. 348,100 A. 601
• Parties: CASTONIA v. MAINE CENT. R. R.
• Court: New Hampshire Supreme Court

100 A. 601

78 N.H. 348

CASTONIA

v. MAINE CENT. R. R.

Supreme Court of New Hampshire. Coos.

Feb. 6, 1917.

Transferred from Superior Court, Coos County; Sawyer, Judge.

Case by Emma Castonia, as administratrix of the estate of Wilfred J. Castonia, against the Maine Central Railroad. Verdict for plaintiff, and case was transferred on defendant's exceptions. Exceptions overruled.

Case, under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), for negligently causing the death of the plaintiff's intestate at Quebec Junction, N. H., September 25, 1914. Trial by jury, and verdict for the plaintiff.

There was evidence tending to prove the following facts:

Castonia was employed as rear brakeman on the defendant's night freight, running from Coos Junction to Portland, Me. The train was made up by the crew which thereafter operated it, and consisted of a heavy locomotive and 20 cars. David Hart was a passenger in the caboose. The train was a little late and left Lancaster at 7:25 p. m. At Moulton's the conductor, Crosby, gave the car seal press to Castonia, with orders to seal a car which was to be set off at the next station. Castonia did as directed. Prom this point on Crosby and the other two brakeman rode on the forward part of the train. There would be occasion to use the press near the forward end of the train at Quebec Junction, and Crosby expected Castonia to bring it to him there. It is the custom of the men to travel over the tops of moving cars whenever there is occasion to do so. A rule of the road provides that the rear brakeman must ride in the caboose and remain at the rear to guard that end of the train. The train crew were under the authority of the conductor, and bound to obey such orders as he gave. After leaving Jefferson Junction (the last station before Quebec Junction) Crosby, who was riding on top of the third car from the engine, saw Castonia with his lantern coming over the top of the rear cars. Crosby supposed it was another brakeman, and paid no attention to the matter after a moment or so.

At some point near Quebec Junction the train was suddenly checked by an excessive application of the brakes. The shock threw Hart to the floor of the caboose, and was the most violent he ever experienced. He could not locate exactly where it occurred, but the place where Castonia was found was within the limits Hart testified to. After the train stopped at Quebec Junction Castonia did not appear with the seal press. Search was made, and his body was found a short distance up the track, lying outside the rails with one leg severed and lying between the rails. An examination of the cars showed blood stains upon the forward trucks of the fifth car from the engine. Upon the top of the same car, near the forward end and upon the slant roof, was a banana peel which had the appearance of having been slipped upon. There was trouble with the engineer Young when the train was being made up at Coos Junction, and Castonia knew that because of this Young would probably handle the train roughly.

Transferred from the April term, 1916, of the superior court, upon the defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict, and to instructions that the conductor's orders might modify the written rule.

Fred W. Baker, of Lancaster, and Sullivan & Daley, of Berlin, for plaintiff. Drew, Shurtleff, Morris & Oakes, of Lancaster, for defendant.

PEASLEE, J. The evidence discloses two possible causes for the fall of the decedent. He might have slipped upon the banana peel, or he might have been thrown by the shock caused by the sudden checking of the speed of the train. For the former the defendant is not liable, for the latter it may be. It is argued that there is no evidence tending to show that it is more probable that the shock caused his fall, and that therefore the plaintiff's case fails, under the rule of Deschenes v. Railroad, 69 N. H. 285, 46 Atl. 467. The question presented is whether there is any evidence from which it could reasonably be found that the shock was the cause of the accident.

The theory that the decedent slipped...