Descoteau v. Boston & M.R.R.
Decision Date | 08 May 1958 |
Citation | 140 A.2d 579,101 N.H. 271 |
Parties | Origene DESCOTEAU v. BOSTON AND MAINE RAILROAD. |
Court | New Hampshire Supreme Court |
Normand R. Pelletier, Nashua, and Upton, Sanders & Upton, Concord, Robert W. Upton, Concord, for plaintiff.
Sheehan, Phinney, Bass, Green & Bergevin and Richard A. Morse, Manchester, William L. Phinney, Manchester, for defendant.
On the day of the accident the plaintiff was engaged as a patrolman in inspecting track out of Lowell, Massachusetts, on the Lawrence branch as far as Tewksbury. He had traveled with his foreman by motor car to 'Wamesit,' where they arrived at about 10 a. m. The car was set off the track and the foreman proceeded on foot to inspect another half mile of track. The plaintiff first cleaned a cross-over switch light and filled it with kerosene; then on instructions from his foreman he went to the section house to light a fire. The day was clear and cold, with a temperature of twenty-six or seven degrees above zero and a northwest wind of about thirty-five or forty miles an hour. The plaintiff testified that he unlocked the section house, removed his coat, placed some newspaper in the 'pot-bellied' stove, lighted it, and put in some coarse pieces of chopped wood two to four inches in diameter, which he later had described as 'wet wood.' He then picked up a partly filled five-gallon kerosene can which stood close by on the floor, and tilted it toward the fire. Before more than a few drops struck the stove, the can exploded, coming apart at the seams. The plaintiff was badly burned and the interior of the eight-by-ten-foot section house was set afire. The plaintiff ran from the house and eventually was taken to a Lowell hospital. The Tewksbury fire department was summoned at 10:23 a. m. and the fire was extinguished within an hour thereafter. Some of the paper, and the firewood only slightly charred, were found in the stove.
The plaintiff, who was 64 years old, had been in the employ of the defendant for forty-four years as trackman, assistant yard foreman, and lastly as section patrolman. He was unable to read or to write, beyond signing his name. While a rule of the railroad provided that 'kerosene or gasoline must not be used to start a fire' there was evidence that throughout the plaintiff's lengthy employment, he and other employees of the defendant including the plaintiff's foreman, frequently used kerosene in starting fires in section house stoves, as well as in burning ties, and grass along the right of way. The plaintiff was unaware of the safety rule and denied that he had ever had a copy of the rule book.
Evidence was introduced by the plaintiff that it was impossible for kerosene to explode under the conditions which existed in the 'Wamesit' section house on November 27, 1951, but that gasoline, and snow-melting oil, commonly called 'skunk oil,' both of which were used by section hands on occasion, could have produced such an explosion. There was no direct evidence as to what constituted the contents of the exploding kerosene can. The defendant's evidence tended to prove that kerosene could explode under the circumstances disclosed by the evidence. Gasoline was customarily stored in distinctive red cans, and 'skunk oil' cans bore no resemblance to the cans used for kerosene.
The plaintiff claimed that the defendant was negligent in failing to provide, publish and enforce reasonable rules for the safety of its employees, in failing to warn the plaintiff of dangers of which it knew or should have known and of which he was justifiably ignorant, and in permitting gasoline or 'skunk oil' to be kept in the section house in a can commonly used for kerosene. These issues were submitted to the jury. The defendant contended that there was no evidence upon which it could be found negligent, and that it conclusively appeared that the plaintiff's injuries were due solely to his own negligence. However, the issue of the plaintiff's due care was also submitted to the jury.
Under the provisions of the Federal Employers' Liability Act, contributory negligence of the plaintiff is not a bar to the action but goes only to the reduction of damages. 45 U.S.C.A. § 53; McAllister v. Suncook Valley Railroad, 93 N.H. 400, 403, 42 A.2d 733. Likewise an employee is not to be held to have assumed the risk of injury resulting in part from the negligence of the carrier. Id., Section 54. Consequently if there was evidence upon which it could be found that the plaintiff's injuries resulted wholly or in part from the defendant's negligence the motions for a nonsuit and a directed verdict were properly denied.
The issue of the defendant's negligence in the enforcement of its rule against using kerosene to start a fire, and in failing to warn the plaintiff of the dangers of doing so were properly submitted to the jury. The plaintiff denied that he was ever furnished a copy of the safety rules or informed of the rule against using kerosene to start fires. While the defendant introduced evidence calculated to establish that a rule book had been in the plaintiff's possession and that safety bulletins and rules had been discussed in his presence at safety meetings, the evidence did not compel belief that the rule in question was ever brought to his attention.
There was ample evidence of the common use of kerosene by employees for the purpose of starting fires over a period of many years. Promulgation of the rules forbidding such a practice was evidence of the reasonable necessity for the rule (Topore v. Boston & M. Railroad, 78 N.H. 536, 103 A. 72), and the evidence of habitual disregard of the rule warranted a finding of the defendant's knowledge of the practice and of its negligence in the performance of its duty to enforce the rule. King v. Boston & M. Railroad, 79 N.H. 95, 106 A. 284; Musgrave v. Great Falls Mfg. Company, 86 N.H. 375, 377, 169 A. 583; McAllister v. Sunbrook Valley Railroad, 93 N.H. 400, 402, 42 A.2d 733. See also, Deschenes v. Burgess Sulphite Fibre Company, 75 N.H. 363, 74 A. 1050; Cummings v. Illinois Cent. Railroad Co., 364 Mo. 868, 269 S.W.2d 111, 47 A.L.R.2d 513; 3 Labatt, Master and Servant, ss. 1119, 1138.
Similarly the issue of whether the defendant was negligent in permitting gasoline or skunk oil to be kept in the section house in a can commonly used for kerosene without warning the plaintiff presented an issue for the jury. As previously indicated there was no direct evidence of whether the can which exploded contained kerosene or some other substance. It appeared however that the can was the sort commonly used for kerosene, and that at the temperatures prevailing on the day of the accident and immediately prior thereto kerosene would not vaporize sufficiently to produce an explosive mixture. Over the objection and exception of the defendant, the plaintiff's expert was permitted to testify that either gasoline or skunk oil would have produced an explosion at the temperatures then prevailing.
The defendant contends that this evidence was erroneously received because there was no evidence that the can contained either of the last mentioned substances, and the witness' testimony that either might have caused the explosion rested only upon conjecture upon which a verdict could not properly be founded. See Dade v. Boston & M. Railroad, 92 N.H. 294, 30 A.2d 485; Nadeau v. Stevens, 79 N.H. 502, 111 A. 749. The evidence disclosed however that gasoline was used for various purposes by sectionmen and patrolmen, and in particular to operate motor-driven generators used in tamping the road bed, an operation which had been conducted in the 'Wamesit' vicinity during the preceding fall. While the plaintiff's foreman denied that any gasoline would have been left in the section house or was customarily stored there, it did appear that the section houses were commonly used for overnight storage of tools and equipment by the tamping crews.
Snow-melting oil which was used in distinctive cans having a long spout with wick at the end was customarily stored at Lowell. The plaintiff testified that there was a snow-melting can stored overhead in the section house on the day of the accident. No substance other than kerosene, gasoline, and snow-melting oil, of a character likely to be stored in a kerosene can, was shown to be in use about the section house. Access to the house was by key only, and it was available for use only to the employees of the defendant.
Thus the plaintiff's evidence warranted a finding that the explosion could have been caused by either of two substances in common use by the defendant's employees. If either of these had been stored in the kerosene can without warning, negligence on the part of the defendant could reasonably be found. If the jury was satisfied by the testimony of the expert that kerosene was not the cause of the explosion, then a finding that the explosive substance was probably gasoline or skunk oil was not speculation or conjecture but merely a determination of the more probable of two possible causes of the explosion, for either of which the defendant could be found responsible. Crocker v. W. W. Wyman, Inc., 99 N.H. 330, 334, 110 A.2d 271; Leavitt v. Bacon, 89 N.H. 383, 392, 200 A. 399; Demers v. Flack, 88 N.H. 184, 186, 185 A. 896. See also, Emery v. Tilo Roofing Company, 89 N.H. 165, 166, 167, 195 A. 409; Saad v. Papageorge, 82 N.H. 294, 133 A. 24. The plaintiff was not bound to disprove the existence of all other possible causes. Bresnahan v. Manchester Coal & Ice Company, 88 N.H. 273, 275, 188 A. 10; Boucher v. Larochelle, 74 N.H. 433, 68 A. 870, 15 L.R.A.,N.S., 416. The testimony of the plaintiff's expert was properly received, and the issues pertaining to the defendant's negligence were properly for the jury.
The defendant further contends that its motions for a nonsuit and directed verdict were erroneously denied because it...
To continue reading
Request your trial-
Murray v. Boston & M.R.R.
... ... Boston & M. Railroad, 87 N.H. 246, 261, 177 A. 729. However, upon a careful reading, these opinions are not necessarily inconsistent with Descoteau v. Boston & Maine Railroad, 101 N.H. 271, 274, 140 A.2d 579. There our Court said: 'Promulgation of the rules * * * was evidence of the reasonable ... ...
-
Brooks v. Washington Terminal Co.
... ... the practice and of its negligence in the performance of its duty to enforce the rule." Descoteau v. Boston & Maine Railroad, 101 N.H. 271, 274, 140 A.2d 579, 583 (1958). There was no such ... ...
-
Moulton v. Groveton Papers Co.
... ... Paul Kelly, Manchester, Hale & Dorr and Stephen H. Oleskey, Boston, Mass., for plaintiffs ... Wiggin, Nourie, Sundeen, Pingree & Bigg and W. Wright ... Bell v. Primeaux, 104 N.H. 227, 183 A.2d 729 (1962); Descoteau v. Boston & Maine R.R., 101 N.H. 271, 140 A.2d 579 (1958); Clough v. Schwartz, 94 N.H. 138, 48 A.2d ... ...
-
Tremblay v. Donnelly
... ... Smith v. Boston & M. R. R., 87 N.H. 246, 254, 177 A. 729. In this situation it was not error to receive the ... Descoteau v. Boston & Maine Railroad, 101 N.H. 271, 277, 140 A.2d 579; Watkins v. Boston & M. Railroad, 84 ... ...