McGarrity v. N.Y., N. H. & H. R. Co.

• Decision Date: 19 June 1903
• Citation: 55 A. 718,25 R.I. 269
• Parties: McGARRITY v. NEW YORK, N. H. & H. R. CO.
• Court: Rhode Island Supreme Court

55 A. 718

25 R.I. 269

McGARRITY

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Rhode Island.

June 19, 1903.

Action by Theresa MeGarrity, as administratrix of the estate of Hugh MeGarrity, against the New York, New Haven & Hartford Railroad Company. A verdict was rendered in favor of plaintiff, and defendant applies for a new trial. Application denied.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff.

David S. Baker and Lewis A. Waterman, for defendant.

TILLINGHAST, J. The plaintiff's intestate, Hugh MeGarrity, lost his life by being caught by the neck in a telltale on the defendant's railroad near the Conant street bridge, in the city of Pawtucket. He had been in the defendant's employ at its freight house in Pawtucket, trucking freight, for several years, and until a day or two before the happening of the accident in question.

The facts connected with the happening of the fatal accident are substantially as follows: On the 30th day of August, 1900, said Hugh MeGarrity was in the defendant's employ in the capacity of head brakeman, and was at work on freight cars in the freight yard of the railroad at Pawtucket, his duty being to aid in switching cars back and forth on the various tracks of the yard. In doing this the cars were hauled forward from the various sidings in the yard onto the main track, which was connected with all the sidings. This track ran under the Conant street bridge. When the cars were far enough over the switch to clear it, it would be turned, and the cars would be pushed back wherever they were going for the time being. Said bridge had a telltale north of it, to warn the brakemen when they were approaching the bridge from that direction that they must stoop. On the day of the accident MeGarrity was standing on top of a furniture car that was being hauled forward from one of the sidings. Three of the ropes of the telltale near the bridge had become looped in some way in a sort of half-hitch; that is, one rope was thrown about two of the others and looped over. In some way McGarrity's neck was caught in this half-hitch, and the ropes held together in such a manner that he was dragged off of his feet and thrown from, the car, receiving injuries from which he shortly afterwards died. The plaintiff was afterwards appointed administratrix of his estate, and she brings this action for the benefit of herself as widow and the children of the deceased, alleging in her declaration that the defendant "unlawfully, negligently, and carelessly suffered and permitted its certain appliance, to wit, a railroad telltale, then and there owned, provided, and maintained in its freight yard adjacent to said railroad bridge, to become and be in a dangerous, improper, and unsafe condition, and perilous to the safety and health of the plaintiff's intestate, Hugh MeGarrity, in that the hanging cords or ropes which then and there hung from the crossbars of said telltale, and which were a part and parcel thereof., became and were caught, tangled, and twisted together so that the same were liable to catch the plaintiff's intestate, * * * of which dangerous condition of said telltale the plaintiff's intestate was unaware." At the time of the accident MeGarrity was standing about in the center of the roof of the furniture car, which is one of the highest types of a freight box car, being from IS inches to 2 feet higher than the ordinary box car. He was the head brakeman, and it was his duty to be upon the first or head car on the train, and to take signals from the switchman in the yard and transmit them to the engineer, the proper discharge of which duties necessitated that he should have his back to the engine, the way the train was going, in order to see the switchman and take the signals. He was standing in this way at the time of the accident. The telltales consist of a bar of wood or iron extending over the track, and supported by posts upon either side, from which short ropes are suspended at such a height as to strike brakemen about the head and shoulders when riding on box cars and approaching the bridge. These ropes are sometimes called lashes, and are hung about six or eight inches apart. The telltales in question consisted of ropes about half an inch in diameter and about two feet long, wound about at the bottom end with fine wire or string to prevent the ropes from unraveling and fraying at the ends. Said half-hitches or loops in the telltales were formed by the exhaust of the engine when passing under them. There is evidence to the effect that the ends of the ropes in question bad become frayed by reason of the unraveling of the wire or string which bound the ends, and that the ends afterwards became enlarged, and sometimes were knotted, forming a bunch at the end; and also that, whenever ropes which were thus knotted were thrown together in a half-hitch or loop, the loop tended to tighten and bind, upon pressure, by reason of the enlarged condition of the ends of the ropes.

At the trial of the case to the jury a verdict was rendered for the plaintiff, and the case is now before us upon the defendant's petition for a new trial on the grounds of certain alleged erroneous rulings of the trial court in he admission and rejection of testimony, and also in his charge to the jury; that the verdict is against the evidence; and that the damages awarded are excessive.

The first class of exceptions relied on by the defendant are those which were taken to tlie admission of testimony as to the condition of the telltales in said freight yard at various times shortly before the happening of the accident; it being contended in support of these exceptions that whether this telltale and others in the immediate vicinity had been looped up at some previous time, unless the particular looping which caused the injury had continued down to the time of the accident, or whether other telltales had become looped up in a similar manner, was immaterial; that to allow this to be shown was to permit the plaintiff to prove other acts of negligence, and thereby prejudice the defendant's case.

This position is untenable; for while it is true, as held by this court in Agulino v. N. Y., N. H. & H. R. Co., 21 R. I. 263, 43 Atl. 63, that in an action of negligence the plaintiff cannot be permitted to show facts and circumstances connected with other accidents or other occasions which would tend to raise collateral issues, yet it is not the law that only the particular facts and circumstances immediately connected with the happening of an accident can be shown in evidence. On the contrary, the plaintiff may properly show the condition of the machine or appliance by which the injury was caused before the time of the accident, for the purpose of proving that the defendant knew, or ought to have known, of the danger connected therewith, and was negligent in not remedying the defect.

After the plaintiff had rested her case, defendant's counsel moved the court to strike out all the testimony which had been introduced showing that the ropes of the telltale forming the loop by which the deceased was caught were knotted at the ends. This motion was refused, and the defendant excepted. The ruling was correct. It was clearly competent for the plaintiff to show the particular condition of the telltale in all its parts at the time of the happening of the accident. The presiding justice said: "The description of the telltales—what they were made of—I think was very properly put in, notwithstanding the fact that no particular stress was laid in the declaration upon the fact that there was a knot at the end of it. They had a right to describe that whole telltale from beginning to end, but when they come to lay stress upon it, and say that is what held It, I think they haven't a right to do it."

This ruling, taken as a whole, was quite as favorable to the defendant as it was entitled to. Indeed, we fail to see why the plaintiff had not the right to lay stress upon the fact that the ends of the rope were knotted for the purpose of showing that a loop, when formed of three of such ropes, was much more dangerous than a loop formed by ropes which were free from knots.

We deem it proper for us to observe, in regard to the exception now under consideration, that the practice of allowing testimony to be introduced without objection, and then, at some subsequent stage of the trial, moving to strike it out, should not be encouraged. As a rule, the objection should be made when the testimony is offered, and if not then made it should be deemed to be waived. Otherwise a party could sit by during a protracted trial and allow all sorts of testimony to go in, and then call attention to such parts thereof as he saw fit by way of objection, and move to strike it out, thus putting the other party to a disadvantage by put ting him off his guard, and causing confusion and delay in the trial of the case.

The next exception is to the ruling of the court in permitting one of the experts called by the defendant to answer the following question: "If the telltale is so looped or twisted together that a man going along on the top of a car and running into it is caught by the chin and held there, so that he is dragged over the car he is on and the next one, was that telltale in proper position when he got to it?" His answer was: "I should say not." The argument against the admission of this testimony is that the accident in question was a very peculiar one, and, so far as known, no such a one had ever happened before; and that the question is not what a man's opinion as to whether a thing is proper or not is after he has observed the accident in question, but what would be his opinion as to the condition of the tiling concerning which he is testifying prior to the occurrence of the accident. In short, the argument is that the defendant would not be chargeable with knowledge of the danger where such...