Leazott v. Boston & M. R. Co.

• Decision Date: 28 July 1899
• Citation: 45 A. 1084,70 N.H. 5
• Parties: LEAZOTT v. BOSTON & M. R. CO.
• Court: New Hampshire Supreme Court

45 A. 1084

70 N.H. 5

LEAZOTT

v. BOSTON & M. R. CO.

Supreme Court of New Hampshire. Hillsboro.

July 28, 1899.

Exceptions from Hillsboro county.

Action by Victor Leazott against the Boston & Maine Railroad Company to recover for injuries. Verdict for plaintiff, and defendants except. Exceptions sustained. Judgment for defendants.

Case, for negligence. Trial by jury, and verdict for the plaintiff. The default complained of was the defendants' failure to inspect the brake on a New York & New England coal car which they had received from a connecting line at Worcester, Mass., to haul over their line to Greendale, Mass. The plaintiff's evidence tended to prove that he had been in the defendants' employ as a freight brakeman between Nashua and Worcester, Mass., for more than five years prior to the time of the accident. At that time he was on a siding at Greendale, shifting out this car. There was a platform about 18 inches wide on the end of the car, for brakemen to stand upon when doing this work. The brake rod came up through the center of the platform about 3 or 3 1/2 feet with nothing to support it. This rod had a defect in it, which had existed for some time, but which was not readily discoverable by the plaintiff. The car was in motion, and the plaintiff was standing upon the platform; and when, in the performance of his duty, he attempted to set the brake, the rod broke, because of the defect, and threw him upon the track, thus causing his injuries. The defendants were accustomed to inspect the running gear of foreign cars, and occasionally the brakes, far enough to discover if the chains were attached to the rods, but made no other inspection of brakes unless their attention was called to those upon some particular car. The plaintiff was a man of ordinary intelligence, familiar with his work and with this system of inspection. The defendants excepted to the denial of their motion for a nonsuit; and the plaintiff, to the ruling of the court that whatever would be a defense to this action in Massachusetts is a defense here.

George B. French and Jeremiah J. Doyle, for plaintiff.

Charles H. Burns and Charles J. Hamblett, for defendants.

YOUNG, J. The rights of parties in actions of tort are so far governed by the lex loci that whatever would be a defense to an action where the cause arose is a defense here. Beacham v. Proprietors of Portsmouth Bridge, 68 N. H. 382, 40 Atl. 1066. The rule of the United States supreme court, that it will adopt its own construction of the common law (Railroad Co. v. Baugh, 149 U. S. 368, 378, 13 Sup. Ct. 914, 37 L. Ed. 772), has no application; for this court has no co-ordinate jurisdiction with the courts of Massachusetts. Inspection was the only duty which the law of Massachusetts imposed upon the defendants, for the plaintiff's benefit, in respect of this car; and they performed this duty if they furnished competent, sufficient, and suitable inspectors, acting under proper superintendence, rules, and instructions. Mackin v. Railroad, 135 Mass. 201. The defendants' habitual neglect to inspect the brakes on cars which they received from connecting lines was the only evidence of their failure to perform this duty, and, while this is evidence of the defendants' negligence (Coffee v. Railroad Co., 155 Mass. 21, 28 N. E. 1128), it is not of itself sufficient to establish their liability; for the burden is on the plaintiff to show all the facts necessary to constitute his cause of action, and one of these facts is that the accident was not caused by a risk which he assumed when he entered the defendants' employment. A servant assumes the risk arising...