Deschenes v. Concord & M. R. R

• Citation: 69 N.H. 285,46 A. 467
• Parties: DESCHENES v. CONCORD & M. R. R.
• Decision Date: 11 March 1898
• Court: Supreme Court of New Hampshire

46 A. 467

69 N.H. 285

DESCHENES

v. CONCORD & M. R. R.

Supreme Court of New Hampshire. Hillsboro.

March 11, 1898.

Exceptions from Hillsboro county.

Action by Jules Deschenes, administrator of Louis J. Larivee, deceased, against the Concord & Montreal Railroad. Verdict for plaintiff. Defendants except. Reversed.

Case, by the administrator of Louis J. Larivee, who is alleged to have been killed September 18, 1894, at the overhead bridge at Robinson's Ferry, on the Concord Railroad. Larivee was in the employ of the railroad as a brakeinan on a freight train, and was not quite 20 years old at the time of his death. He had worked for the railroad about 3 months in the fall of 1893, and for about 2 weeks of that time had been a freight brake-man. He left the road in November, 1893, and returned to work again in June, 1894, and was employed as a freight brakeman until the day of the accident. From July until his death he was head brakeman on a freight train which left Concord at 7:30 o'clock p. m. and arrived at Nashua at 10:30, and on a freight train which left Nashua at 3:30 o'clock a. m. and arrived at Concord at 6:30. Robinson's Ferry overhead bridge is about 6 miles south of Concord and 3 miles north of Hooksett, and Larivee's train passed there, going up, at about 5:30 o'clock a. m. The overhead bridge at Robinson's Ferry is 17 feet and 6 inches above the track. It has a bridge guard or telltale 135 feet south of the bridge. From the bottom of the telltale wires to the track beneath, the distance is 17 feet and 3 inches. There were 13 wires in a distance of 98 inches, supposed to be equally distant, and about 8 1/6 inches apart. The wires are about 4 feet long. It was 21 feet and 1 inch from the rail to the arm. Larivee was 5 feet and 4 or 5 inches tall. On a high car he would have to stoop. On an ordinary car he would pass under the bridge safely. Larivee was the head brakeman, and rode on the engine when not at work on the cars. At the time of the accident the train which left Nashua for Concord at 3:30 o'clock a. m. had 56 cars, of different kinds, and the weather was foggy. Larivee was seen on top of the train after passing Hooksett, but he did not come forward to the engine. The train arrived at Concord about 6 o'clock. The rear brakeman on the train went forward on top of the cars, and found Larivee dead, lying on his back on a refrigerator car, 7 to 10 cars from the head end of the train. The car on which Larivee was found was 12 feet and 9 1/2 inches high. His hat was gone, and was found by the side of the track, about 100 feet north of the Robinson Ferry bridge. There was a wound on his forehead, on the left side, over the left eye, about 3 1/2 inches long, which appeared to have been made by striking something pretty hard. The speed of the train was from 12 to 15 miles an hour. At the close of the evidence a motion that a verdict be ordered for the defendants was denied, and they excepted. Verdict for the plaintiff.

Burnham, Brown & Warren and Drury & Peaslee, for plaintiff. Charles H. Burns and Frank S. Streeter, for defendants.

PARSONS, J.The plaintiff's intestate, while employed as a freight brakeman by the defendants, was killed by collision with an overhead bridge. It is not contended that the danger from the bridge was unknown to, or not assumed by, the deceased. The claim is that the telltale or guard protecting the bridge was defective and insufficient, and that, upon the evidence, the danger presented by the low bridge and defective guard combined might be found by the jury to be unknown to him, and not ascertainable by ordinary care. Hardy v. Railroad Co., 68 N. H. 523, 41 Atl. 179. Underlying the question of Larivee's knowledge, upon which the plaintiff claims, under Hardy v. Railroad Co., that the case was properly submitted to the jury, is the preliminary question whether a defect in the guard occasioned the injury; for, unless it is established that the defective guard caused the injury, Larivee's knowledge or want of knowledge of such defect is immaterial. The denial of the defendants' motion that a verdict be ordered for them cannot be sustained unless evidence was presented upon which the jury could properly and reasonably come to two conclusions: (1) That the bridge guard was defective; and (2) that Larivee's injury resulted from the defective guard, without fault on his part.

The bridge guard consisted of an arm over the track, 21 feet and 1 inch above the rail. From the arm, wires were suspended, each about 4 feet in length. The lower ends of the wires were 17 feet and 3 inches above the rails. The lowest part of the bridge over the track was 17 feet and 6 inches above the same point. Larivee was 5 feet 4 inches in height. On an ordinary car, he would pass under the bridge safely; but the car on which he was found after the injury was a tall car, 12 feet and 9 1/2 inches high. On such a car he would have to stoop, to pass the bridge in safety. There was no witness to the accident.

The first claim is that the guard was defective, because the wires extended only 3 inches below the level of the bridge. The office of the bridge guard, as we said in Hardy v. Railroad Co., supra, was to notify the "trainmen, by the senses of sight and feeling, that they were about to pass a bridge which would hit them unless they changed their position. * * * To accomplish the object in view, the guard should be some device that will hit some portion of the body when the head is above the plane of the under surface of the bridge,—not for the purpose of furnishing a gauge by which to adjust the position of the body, but for the purpose of calling attention to the proximity of danger in and above that plane." In that case the guard wires did not extend within 6 inches as low as the timbers of the bridge by which Hardy was injured. This fact furnished evidence competent for the consideration of the jury upon the question of the sufficiency of the guard; for, as was said in the opinion, "the jury might find that the lower ends of the wires should be as low, at least, as the level of the under surface of the bridge timbers, so that they would give warning whenever any portion of the body was above that level." It may be that a jury might also find that, in order to constitute a sufficient guard, the wires should extend sufficiently below the danger line to give by their impact with the body substantial warning of the approaching danger. But no reason arising from ordinary experience and knowledge, such as the jury would possess, is suggested to us why they should extend further, or why a drop of 3 inches, as in this case, is not amply sufficient. There was no evidence and there is no suggestion of any useful purpose to be subserved by requiring warning of a nonexisting danger, nor why the brake-man should be interrupted in his work, or possibly forced into other peril, by an attempt to obey a useless warning, and to avoid a danger which did not threaten him. It is manifest that the blow from a suspended wire upon the face or person of a brakeman, striking it at the speed of 18 miles an horn, ought not to be inflicted without cause. It is suggested that probably Larivee stooped as he was passing under the guard, and so was not notified. If, passing under the wires, he received no notice, and was injured by placing himself within the plane of dauger between the guard and the bridge, this was something which might happen whatever the drop of the guard wires, and was a risk incident to the service, and assumed by him. Hardy v. Railroad Co., supra. It is also claimed that the guard was insufficient because the wires were too far apart. From the arm, in a space of 98 inches, were suspended 13 wires, from 1/8 to 1/4 of an inch in diameter, supposed to be equal distances apart; making, if the supposition were correct, the distance between the centers of the wires 8 1/6 inches, and the actual space between the wires 1/8 to 1/4 of an inch less, or a fraction under 8 inches. Larivee was wearing a stiff Derby hat, which was found beside the track, about 100 feet north of the bridge. The hat was produced before the jury, and is said to have measured less than 8 1/2 inches. Upon the facts stated in the reserved case, it is clear that Larivee could not have passed the guard with any portion of his person within the zone of danger, without warning from the guard. His hat, measuring over 8 inches, could not have passed through the less than 8-inch space between the wires without being struck by them.

Our attention has been called to the testimony of a witness, as shown by the stenographer's notes, in substance, that some of the wires were bent slightly, while some were straight, and that the bending of the wires affected the spaces between them somewhere from half an inch to an inch about the middle of the track. It appeared that the train had slowed up at Hooksett, 3 miles below the bridge, to take on some workmen, and that Larivee was then seen attending to his duty, and standing upon a car about 31 cars back from the engine. After leaving Hooksett he had sometimes come for ward to the engine. When the train reached Concord, Larivee was found dead, lying on his back, with his head towards the south, on and lengthwise of the running board of a car 7 to 10 cars back from the engine. There was a cut on the left side of his forehead, a little above the left eye. Upon...