Kenney v. Boston & Me. R. R.

• Decision Date: 07 September 1943
• Parties: KENNEY v. BOSTON & MAINE R. R.
• Court: New Hampshire Supreme Court

33 A.2d 557

KENNEY

v.BOSTON & MAINE R. R.

Supreme Court of New Hampshire.

June 25, 1943.

Rehearing Denied Sept. 7, 1943.

Transferred from Superior Court, Merrimack County; Connor, Judge.

Case by Theresa N. Kenney, as administratrix of James F. Kenney, deceased, against Boston & Maine Railroad for injuries and death of plaintiff's intestate under the Federal Employers' Liability Act. Trial resulted in verdict for plaintiff and defendant excepted to denial of motions for nonsuit and for directed verdict, and cause was transferred.

Judgment for defendant.

Case, brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, to recover for the injuries and death of James F. Kenney. At the time of his injuries the deceased, a freight brakeman, was employed in interstate commerce on the defendant's train going from Concord, New Hampshire, to Worcester, Massachusetts. Trial by jury resulted in a verdict for the plaintiff. The defendant excepted to the denial of its motions for a nonsuit and for a directed verdict, the motions being grounded on the asserted lack of evidence of the defendant's causal negligence and of the dependency of the sole next of kin. Transferred by Connor, J. The facts appear in the opinion.

Murchie & Murchie, of Concord (Alexander Murchie, of Concord, orally), for plaintiff.

Demond, Sulloway, Piper & Jones, of Concord (Jonathan Piper, of Concord, orally), for defendant.

PAGE, Justice.

The deceased was head brakeman on the train. The accident happened in Merrimack. The defendant's line was double-tracked and ran nearly north and south. The train was proceeding south on the westerly track at about two o'clock in the morning of August 19, 1939, when it stopped for the movements later to be described, near the close of which the accident happened. It was a dark night. The train crew had to leave two cars and take on another at Merrimack. With this in view the train was brought to a stand with the locomotive just north of a block signal situated over 1,400 feet north of the Merrimack Station.

South of the block signal, at a distance of 465 feet and on the west track, was a switch that gave access to a siding running northwest from the main track. This was known as the McElwain Siding. South of this switch, 241 feet, was the north end of a bridge carrying the two main tracks over a stream. This bridge was 119 feet long. South of the south abutment of the bridge, a distance of 631 feet, was the north end of the Merrimack Station, which extended south a distance of 57 feet. South of the south end of the station, in the west track, 535 feet distant, was a switch giving access to the Excelsior Siding. Along the west side of the tracks, north and south of the bridge, the shoulder was more or less beaten, but there is no evidence that this “path” was ever used except by the section men employed by the defendant and by a single workman at the Excelsior Factory who lived at Reed's Ferry one and a half miles north of the station. There was no house in either direction from the station for a mile and a half. The bridge was in the woods, and it had no walkway. Under the circumstances of the travel on foot in the vicinity, it could not be found that a walkway was reasonably required.

The train crew on the night of the accident consisted, besides Kenney, of the engineer, the fireman, the conductor and the rear brakeman. When the freight train of about fifty cars stopped just north of the block signal, the conductor and the rear brakeman were in the caboose at the rear end. The rear brakeman went back, when the stop was made, to act as flagman for the protection of the train while it was detained for the operations at Merrimack. The conductor remained in the caboose according to custom. Kenney, who had ridden from the last station in the locomotive, bearing a written memorandum of instruction from the conductor as to switching operations at Merrimack, proceeded to put these instructions into effect. The succeeding movements were under his direction, he giving the engineer all necessary signals for stopping and for motions forward or backward, signals that under the rules the engineer was bound to obey. It was Kenney's duty also to see that switches were thrown when necessary, that cars were properly moved and placed, that the cars were properly coupled or uncoupled and the air hose disconnected or connected as the movements required.

First Kenney uncoupled the head car from the train. At his signal the locomotive and the single car went south sufficiently to clear the McElwain switch. This required the head of the locomotive to go no more than half way from the switch to the bridge, and the car on which Kenney rode, merely to pass the switch. This car was then backed, after Kenney threw the switch, into the McElwain Siding and left there. The locomotive then drew out onto the main track, Kenney closed and locked the switch so as to permit passage on the main line, and the switch remained closed and locked in that position until after the accident.

The next movement was for the locomotive to back up to the train and couple onto what was then the forward car, formerly the second, which was detached from the train, drawn south over the bridge past the station, and set upon the Excelsior Siding. At this siding an empty car was taken by the locomotive to the main line and backed to the station, where it was stopped and Kenney got the way bill and remounted the car. This car was a box car with a ladder at each end, and also a side ladder at each end. There was no defect in the car, in the ladders, in the steps, in the holding-irons, in the locomotive.

There was now nothing left to do at Merrimack except to back up to the other cars north of the block signal, reunite the train, and proceed south on the way to the next stop. In spite of the darkness, the point for the stop in order to effect the coupling was spotted by two lights on the block signal. It was the duty of Kenney to signal for the stop and of the engineer to obey the signal. There is no evidence at all that there was any occasion for a stop until just after passing the block signal. For no explainable reason, however, the locomotive and the car it was pushing came to a stop with the south end of the car Kenney was riding some eight or ten feet north of the south abutment of the bridge and over 750 feet south of the block signal. The engineer testified that he stopped because Kenney gave him a signal, but the plaintiff at certain stages of the trial contended that no signal was given. In either event, no witness could assign any reason for stopping at that point, and there is no evidence at all that the business in hand required it.

After the stop, the engineer saw Kenney climb with his lantern down the westerly side ladder of the car, topple and fall. He was found on the rocks below, partly in the water, and died of his injuries. The bridge was not an open trestle, but filled with rock ballast its full width. There was no rail. Between the car and the west margin of the bridge the space was about thirteen inches.

The plaintiff alleges that the defendant is chargeable with causal negligence in one or more of three respects: (1) in not providing the bridge, as a work-place, with a cat-walk and a rail; (2) in not warning the deceased of the lack; (3) in that the negligence of a fellow servant of the deceased caused his injuries and death.

Considering the circumstance of the distance of the bridge from the two switches, there is not the slightest evidence that the defendant or any of its agents or employees should have anticipated that the deceased in the course of his duties would have occasion to alight upon the bridge. As far as appears, he had occasion to alight on the main track only at the switches and station. The test of the duty of the defendant to make the bridge safe as a work-place being anticipation (cf. D'Ambrosio v. Boston & M. R. R., 81 N.H. 119, 124 A. 551) no duty in that respect can be found. The bridge was not a work-place in the sense that might perhaps have been found if the shifting operations were likely...