McGill v. Maine & N. H. Granite Co.

• Decision Date: 16 March 1900
• Citation: 46 A. 684,70 N.H. 125
• Parties: McGILL v. MAINE & N. H. GRANITE CO.
• Court: New Hampshire Supreme Court

46 A. 684

70 N.H. 125

McGILL

v. MAINE & N. H. GRANITE CO.

Supreme Court of New Hampshire. Carroll.

March 16, 1900.

Exceptions from Carroll county.

Action by Lydia A. McGill, administratrix of the estate of James McGill, deceased, against the Maine & New Hampshire Granite Company. Motions of defendants for a nonsuit and to direct a verdict in their favor were denied, and they bring exceptions. Sustained.

Case for negligence resulting in the death of the plaintiff's intestate, James McGill, while in the employ of the defendants. Trial by jury, and verdict for the plaintiff. The evidence tended to show the following facts: The deceased had been in the defendants' employ for about 12 years, and at the time of his death had charge of their granite shed and yard; being foreman of that part of their works. This shed and yard were on a siding of the Maine Central Railroad, which extended in an easterly direction from the main line through the defendants' premises a distance of about 1,000 feet. There was a switch in the yard some 200 feet westerly of the shed, which was usually kept open so that cars coming down the siding could not go onto the main line. This siding extended easterly of the shed, on an up grade, a number of hundred feet to, and some 500 feet beyond, a steam stone crusher operated by the defendants. It was the defendants' custom to put four or five cars upon the siding above the crusher. By their direction, their employes then moved the cars down the track, one at a time, under a spout at the crusher, loaded them with crushed stone, and then moved them a short distance down the track towards the main line, to be taken by the railroad. The moving of the cars done by the defendants' employes was effected by pinch bars or gravity. On the day of the injury to McGill, two of the defendants' employes loaded two of the cars in this manner, and while they were letting them down the grade the cars got beyond control and ran away, by reason of a defective brake on the rear car. The men moving them jumped off when they found them beyond control. McGill had nothing to do with the work at the crusher, which was in the charge of another foreman; but when the cars came by the shed and through the yard where he was at work, and he saw the forward car, which was some 50 or 60 feet in advance of the other, running away unattended, he ran ahead and closed the switch, which was open., When the first car ran past the switch, leaving the switch open, he pursued the car down the siding. As he overtook the first car and was about to climb upon it, the second car ran over and killed him. The evidence tended to show that he did not see the second car until just before it ran into him, but that at the switch there was an unobstructed view up the track easterly for about 400 feet, and that the cars could be plainly seen for that distance. The defendants excepted to the denial of their motions for a nonsuit, and to direct a verdict for them.

Josiah H. Hobbs and Fred B. Osgood, for plaintiff. John B. Nash and Walter D. H. Hill, for defendants.

PARSONS, J.The jury were instructed that the defendants were bound to exercise reasonable care to ascertain, by proper inspection or examination, that the cars were safe for the use which the defendants required their employ6s to make of them. To this instruction the defendants excepted, and requested an instruction that a shipper is not responsible for the construction of a car received from a railroad company in the ordinary course of business, unless there is a plain defect that could be discovered by reasonable diligence. The question, if raised by the foregoing, whether the rule applicable to railroad companies, requiring inspection of the cars of other companies used for transporting freight, is or not applicable to persons upon whose sidings cars are delivered for loading or unloading, was decided adversely to the plaintiff in McMullen v. Carnegie, 158 Pa. St. 518, 27 Atl. 1043, 23 L. R. A. 448, while in Spaulding v. Granite Co., 159 Mass. 587, 34 N. E. 1134, a rule more favorable to the plaintiff than that included in the instructions given was approved. But, in the view we take of the case, we have not found it necessary to consider this question. "As a matter of course, there can be no negligence where there is no duty." Shear. & R. Neg. § 15. It must appear, to render the defendants liable, that the action, or omission to act, of which complaint is made, constituted a breach of a duty owed the plaintiff by the defendants. Conceding that a duty of inspection rested upon the de fendants, such duty arises from the familiar principle that the master is bound to exercise due care to furnish the servant with such appliances for his work as are suitable and may be used with safety. Such duty is owed only to the servants required or permitted, or, in the course of the business, expected, to make use of the instrumentalities provided. If the failure of inspection was a breach of duty to the employes at the stone crusher, who were required to move the cars, such failure was no breach of any duty owed by the defendants to a stranger or to McGill, who "had nothing to do with the work at the crusher." So far as appears, all the appliances furnished McGill for his work were safe and suitable. No harm came to him in his use of such as were furnished him. Neither did the defective brake or the running away of the cars render his place of work unsafe, or put him in danger in going to or returning from his work, or endanger his safety in the course of the employment for which he was hired. He was foreman of the granite shed and yard. Further up on the siding running through the yard was the stone crusher, in charge of another foreman. When McGill observed the cars running away, he was in a place of safety. He. was not responsible for the escape of the cars. He was not required by the direction of his employer or the nature of his employment to take any steps in the matter. His subsequent injury, arising from his unauthorized action, without request in fact or by implication from the defendants, and not from any breach of duty owed him by the defendants, does not sustain a charge of negligence against them. Where the servant voluntarily and without directions...