Caverhill v. Boston & M. R. R

• Decision Date: 27 June 1914
• Citation: Caverhill v. Boston & M. R. R, 91 A. 917, 77 N.H. 330 (N.H. 1914)
• Parties: CAVERHILL v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

91 A. 917

77 N.H. 330

CAVERHILL

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Rockingham.

June 27, 1914.

Exceptions from Superior Court, Rockingham County; Young, Judge.

Case by Jennie S. Caverhill, as administratrix of Henry Caverhill, deceased, against the Boston & Maine Railroad, for causing the death of decedent, who was employed as a section man by defendant.Plaintiff bad a verdict, and the case was transferred on defendant's exceptions to the denial of motions for nonsuit and for the direction of a verdict in its favor, and to remarks of plaintiff's counsel in closing argument.Plaintiff relied on the federal employers' liability act.It appeared that decedent was struck and killed by one of two of defendant's trains which met and passed a spot where decedent was at work, and that if the engineer of either train had exercised ordinary care, the accident would not have occurred.Exceptions sustained, and new trial granted.

Eastman, Scammon & Gardner, of Exeter, for plaintiff.Kelley & Hatch and Page, Bartlett & Mitchell, all of Portsmouth, for defendant.

PARSONS, C. J.By the federal statute, whose application to the case is understood to be conceded, the defendants, common carriers by railroad, were made liable, "while engaging in commerce between any of the several states, * * * to any person suffering injury while he is employed by such carrier in such concern, or, in case of the death of such employé, to his or her personal representative, * * * such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier."35 U. S. Stat. P. 65, § 1.

There was evidence that the intestate's death was due to the careless operation of the meeting trains by the engineers in charge of them.The federal act abolishes the defense of fellow service; and whatever risks the deceased assumed as to the defendants' method of doing business, he did not assume the risk of injury from the negligence of another employé.For an injury so caused, the statute expressly makes the employer liable.There was therefore no error in the refusal to order a nonsuit or to direct a verdict because of the absence of evidence of negligence for which the defendants were bound to respond as a cause of the injury.The contention that the deceased was not employed in commerce between the states has not been argued here, is understood to be abandoned, and has not been considered.

The argument of the plaintiff's...