Lockwood v. Am. Express Co.

• Citation: 76 N.H. 530,85 A. 783
• Parties: LOCKWOOD v. AMERICAN EXPRESS CO.
• Decision Date: 07 January 1913
• Court: Supreme Court of New Hampshire

85 A. 783

76 N.H. 530

LOCKWOOD

v. AMERICAN EXPRESS CO.

Supreme Court of New Hampshire. Sullivan.

Jan. 7, 1913.

Exceptions from Superior Court, Sullivan County; Plummer, Judge.

Action for personal injuries by Irving L. Lockwood against the American Express Company. Verdict for plaintiff, and the defendant excepts. Exceptions overruled.

The plaintiff's evidence tended to prove the following facts: The plaintiff was injured in an accident which occurred at the station of the Boston & Maine Railroad, at Claremont Junction, on the evening of September 5, 1910. One Ramsey was the station agent of the Boston & Maine Railroad, and also the agent of the defendants at that place. One Perkins, who was employed by the railroad, was, with the knowledge and assent of the defendants, in the habit of assisting Ramsey during the daytime in handling express matter. Ramsey left the station every afternoon at 5 o'clock, and from that time Perkins was the only person there whose duty it was to handle, and who customarily handled the defendants' express matter. On the day of the accident, Ramsey stopped work as usual at 5 o'clock, leaving Perkins to handle the express matter on incoming trains that night. Train No. 409, which carried express matter that night, came into the station on the east side from the Claremont division at about 9 o'clock. The express matter was destined for stations further north on the Passumpsic division, and had to be transferred to train No. 33, going north over that division from the west side of the station. The latter train was due at about 9 o'clock; but on the night in question it did not arrive until a few minutes later. It had just arrived when a freight train, moving in a northerly direction, came into the station on the east side from the Claremont division. The plaintiff was a brakeman on this train, being employed by the Boston & Maine Railroad, and in the performance of his duty was riding on a running board attached to the left side of the pilot of the locomotive. Along the east side of the station buildings and platform were five lights, and the headlight of the locomotive cast its rays 30 feet or more up the track. While the train approached and was passing the station, the plaintiff was looking up the track, but saw nothing upon it. The first he knew of the presence of an obstruction was when he was struck by a truck and injured. He then saw that it was a truck owned by the defendants, and loaded with express matter, and that Perkins had hold of the tongue of the truck and was endeavoring to pull it out of the way. The plaintiff had no opportunity to avoid the accident before he was struck. The defendants had three trucks at the station. When not in use and unloaded, they were left under a shed at the north end of the annex; but, when loaded and not in use on the platform, they were kept in the annex, which was a building just south of the shed and between it and the station proper. The platform, in the vicinity of the shed, sloped in an easterly and southerly direction, and away from the place of the accident, which was about 40 feet north of the northerly posts of the shed. The platform, at the place of the accident, sloped somewhat toward the easterly track; and, because of this, trucks left unchained were liable to be moved by the jar of passing trains. The defendants were aware of this liability, had provided chains to guard against such an occurrence, and had instructed Perkins not to leave the trucks unchained. Nobody was on the platform at the time of the accident, except Perkins and Canty, the baggagemaster. Perkins was there doing express work, and Canty was then starting, or had started, for train No. 33 to do baggage work. While awaiting the arrival of train No. 33, Perkins left the truck unchained, so that it was set in motion by the jar of incoming trains; or, in preparing the truck to cross the platform, he backed it in front of the freight train just as it was passing.

So much of the contract between the Boston & Maine Railroad and the defendants as is material to the questions here raised is reported in the opinion. The defendants' motions for a nonsuit and the direction of a verdict in their favor were denied, and they excepted. The following requests of the defendants for instructions were denied, except in so far as they were given in substance in the charge of the court, and, to such refusal to charge, the defendants excepted:

"(6) If the plaintiff was riding on the cowcatcher of the engine merely for his own convenience, in order to get to his home, which was near the station, the freight train on which he had been employed as a brake-man having been broken up back by the roundhouse, then, as he was riding in an obviously dangerous place, he is guilty of contributory negligence.

"(7) If the plaintiff was riding on the cowcatcher of the locomotive, even in the performance of his duties, it was his legal duty, when riding in that dangerous situation, to keep a lookout ahead for obstructions with which the locomotive might come in contact; and, if he failed so to do, he was guilty of contributory negligence, and cannot recover."

"(9) As the plaintiff, at the time of the accident, was riding in a place of obvious danger, he should have exercised care for his own safety by looking ahead for obstructions on the track with which he might come in contact. He had no right to rely solely upon other persons not being negligent."

"(13) The mere fact that Perkins was attending to the express work that night is not proof that he had anything to do with the truck at any time shortly before the accident, or that any conduct of his caused the truck to be on the track."

"(15) The fact that Perkins was seen to take hold of the handle of the truck and pull it away from the track at some time after the accident occurred does not in any way tend to prove that his conduct or act caused the truck to be upon the track at the time of the accident."

"(18) If Perkins was hired and paid by, and was subject to the control of, the railroad, and if the express company had not hired him, did not pay him, and had no power to discharge him, then he was not a servant of the defendant, and the defendant is not responsible for his conduct or his acts.

"(19) If the railroad had contracted with the defendant to furnish it transportation and services and facilities at stations in handling express matter, and if at the Claremont station the railroad employed and paid a laborer to handle express matter in connection with his other duties as a railroad employe, then the railroad is an independent contractor, for whose conduct, and for the conduct of whose servants, the defendant is not liable or responsible.

"(20) If the railroad was such an independent contractor, and in performance of its contract employed Perkins to carry...