Hardy v. Boston & M. R. R.

• Decision Date: 31 July 1896
• Citation: 68 N.H. 523,41 A. 179
• Parties: HARDY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

41 A. 179

68 N.H. 523

HARDY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

July 31, 1896.

Exceptions from Merrimack county.

Action by Anthony C. Hardy, administrator of William H. Hardy, deceased, against the Boston & Maine Railroad. Defendant's motion for nonsuit and direction of verdict were denied, and it excepted. Exceptions overruled.

Case for injuries to the plaintiff's Intestate, caused by the defendant's negligence. At the close of the plaintiff's evidence the defendant moved for a nonsuit, and at the close of the evidence on both sides it moved that a verdict be directed in its favor. Both motions were denied subject to its exception. The evidence tended to prove the following facts: The deceased, William H. Hardy, was employed by the defendant as head brakeman upon a freight train running over the Concord & Claremont Road. He was 33 years old, 5 feet 8 inches tall, in good health and had a common school and academic education. He had been employed upon railroads 15 or 16 years, a good share of the time as brakeman. He was an active, intelligent, and capable brakeman. At the time of his employment by the defendant there was a highway bridge over the railroad near the Mast yard station in Concord, which rested upon abutments at each side of the railroad, about 16 feet apart. The under surface of its timbers was about 14 feet 6 inches above the top surface of the rails, making a space underneath, for the passage of trains, about 16 feet wide and 14 1/2 feet high. Freight trains passing there were composed in part of box cars varying in height from 11 to 14 feet above the rails; the free space between the tops of the cars and the bridge varied from a few inches to 3 1/2 feet. At a distance of 125 feet easterly of the bridge there was a bridge guard, consisting of an arm extending across the track from a post at one side, with wires about 5 feet long and 8 inches apart hanging from it, their lower ends being 15 feet above the track, or 6 inches higher than the under surface of the bridge timbers. Fifty or 100 rods westerly of the bridge there was a spur track, connected with the main line by a switch at its easterly end. This was the lowest bridge upon the line, and the only one located so near a spur track. No change was made in these conditions after the last employment of the deceased. Some eleven years prior to his injury, the deceased worked upon this railroad as spare brakeman for a short time. The bridge was then substantially the same as at the time of his last service. It did not appear whether it was then protected by bridge guards, nor whether the spur track was there. After his last employment, he worked about 6 weeks, making about 18 trips each way over the road. On nearly every trip in the westerly direction the trainmen set cars from the train upon the spur track. On these occasions it was the duty of the deceased to inform the engineer what was to be done, and, when the train was sufficiently near the siding, to go upon one or more cars at the head of the train and set the brakes,—thereby reducing the speed of such cars, and bringing the rear cars against them, and enabling the rear brake-man to pull the connecting pins at the desired points. Sometimes the deceased assisted in pulling the pins, and sometimes he set the switch for the admission of the ears to the siding. After the pins were pulled, the forward end of the train went by the switch at an increased speed, the switch was set, and the disconnected cars, following at a slower speed, went upon the spur track. This duty must be performed near the bridge. It was easier to do the work if it was commenced at a considerable distance from the siding; and if the rails were wet, it was necessary to begin at a greater distance than if they were dry. The deceased sometimes went upon the cars before reaching the bridge, and sometimes afterwards. He had been seen to ride under the bridge on the top of a car in a stooping posture, and also in a sitting posture. He knew that the trains were mane up of cars of different heights. He received his injury upon a westward trip on the morning of August 1, 1892. It was misty or rainy at the time, causing the smoke to settle over the train, and the rails to be wet. He went to the locomotive some time before arriving at the bridge, and informed the engineer that two flat cars were to be set upon the spur track, and two more upon a side track at the Mast yard station. The train was running about 15 miles an hour, or 22 feet a second. At some point, within 1,575 feet of the bridge, he went back over the tender to the first car in the train—a box car, about 11 feet high— to set brakes, and assist in setting out the cars. The only witness called by the plaintiff who saw Hardy after he started back, and before his injury, was the fireman. He testified, in substance, that he had no doubt they had come in sight of the bridge,—that is, within 975 feet of it,—when Hardy started from the engine to go back; that he was leaning out the cab window, looking to the rear of the train for signals; that he got a glimpse of Hardy as he passed over the coal on the tender, and jumped onto the end of the next car; that just as he went onto the car they went under the bridge, and the smoke hid him from view; that when they got out from under the smoke he saw Hardy's hat going in the air, and an outline of his heels, or something; that he then drew his head in, and looked over the tender, and saw Hardy lying upon the car; that he went to him, and found him lying lengthwise of the car, apparently dead, with his head towards the engine, and a little nearer to the forward end than to the door of...