Morey v. Me. Cent. R. Co.

• Decision Date: 29 April 1926
• Citation: 133 A. 92
• Parties: MOREY v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

133 A. 92

MOREY

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

April 29, 1926.

On Motion from Superior Court, Androscoggin County.

Action by William G. Morey against the Maine Central Railroad Company. Verdict for plaintiff, and defendant moves for new trial. Motion sustained, and new trial granted.

Argued before WILSON, C. J., and PHILBROOK, MORRILL, STURGIS, and BASSETT, JJ.

Herbert E. Locke, of Augusta, for plaintiff.

Charles B. Carter, of Lewiston, for defendant.

MORRILL, J. On February 2, 1924, the plaintiff, while employed by the defendant as a brakeman upon a train engaged in interstate commerce, fell from a moving train and received an injury which resulted in the amputation of his left leg above the knee. In this action to recover damages for that injury, brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), the plaintiff has a verdict, and the case is before us upon a general motion for a new trial.

The accident happened on a flat car loaded with lumber. The plaintiff alleges: "(1) Failure of the defendant to provide the plaintiff a safe place in which to work; (2) the failure of the defendant to provide reasonably proper and necessary safety appliances and arrangements; and (3) the negligence of the defendant in requiring the plaintiff to proceed in his work over and upon a car so piled with lumber and accepted for shipment by the defendant so piled with lumber that it was impossible for a man with safety to cross the same." Failure to comply with the federal acts for the use of safety appliances is not claimed, and was expressly disavowed by counsel; the allegation (2) of failure to provide reasonably proper and necessary safety appliances and arrangements refers to alleged failure to provide a "ladder or other device for him to climb down from said pile of lumber."

The above are the only allegations of negligence to which the injury is attributed.

The defendant pleaded the general issue, and by way of brief statement: (1) That at the time of the accident the plaintiff was engaged in the movement of interstate commerce, and was within the federal Employers' Liability Act (which is conceded); (2) "that the alleged injury was received as the outflow of a danger inherent to and a part of the said plaintiff's contract of employment, and that the risk of such danger was assumed by the said plaintiff; and (3) that the negligence of the plaintiff is indicated by such acts of his that make his negligence the sole cause of the accident, or if not, that the acts of the plaintiff contributed largely to the causation of the accident."

After an accident resulting in such serious injury as here occurred, human sympathy for the injured man is strongly aroused, and we must need recall the familiar principle that the mere fact of the accident carries with it no presumption of negligence on the part of the employer; that the employer's negligence is an affirmative fact to be established by the injured employee.

Nor does the fact that the work performed is dangerous, or is performed in a dangerous place, and injury results, necessarily show negligence. Dangerous work must be performed; and work must be done in dangerous places; and when a workman makes a contract to do such work, or to work in a dangerous place, he contracts with reference to that danger and assumes the "open and obvious risks incident to the work," or, as sometimes expressed, "such dangers as are normally and necessarily incident to the occupation." This is a contractual assumption of risk. Ashton v. B. & M. R. R., 109 N. E. 820, 222 Mass. 65, 69, L. R. A. 1916B, 1281; Seaboard A. L. Co. v. Horton, 34 S. Ct. 635, 233 U. S. 492, 504, 58 L. Ed. 1062, 1070, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. With reference to risks and dangers covered by the contract, the employer owes the employee no duty, and so cannot be held guilty of negligence. Ashton v. B. & M. R. R., supra; Murch v. Wilson's Sons Co., 47 N. E. 111, 168 Mass. 408, 411.

A primary duty of a railroad company is to use due care in providing a reasonably safe place and reasonably safe appliances for the use of its employees. It does not undertake to provide a reasonably sale place and reasonably safe appliances, but it does undertake to use due care to do so, and that is the measure of its duty. Sheaf v. Huff, 111 A. 755, 119 Me. 469. The rule of the defendant, much relied upon by plaintiff, that "no car must go forward which exceeds the clearance dimensions or is loaded in a manner to make it unsafe," does not enlarge the legal duty of defendant; it was au injunction to employees to observe the legal duty resting upon the defendant. An employee has a right to assume that the railroad company will perform its duty, and his contractual assumption of risk does not cover risks arising from his employer's negligence, in failing to perform its duty. P. & R. Ry. Co. v. Marland, 239 F. 1, 7, 152 C. C. A. 51.

But there may be a voluntary assumption, by the workman, of risks arising from the failure of the employer to perform his duty, and this occurs when the workman becomes aware of them, or they are so plainly to be seen that he must be presumed to have known and appreciated them. Ashton v. B. & M. R. R., supra; P. & R. Ry. v. Marland, supra; C, N. C. & T. P. Ry. Co. v. Thompson, 236 F. 1, 149 C. C. A. 211. Negligence of the employer being established, voluntary assumption of the risks arising therefrom must be proved by the defendant, if he would avoid the consequences of his negligence. Ashton v. B. & M. R. R., supra.

Cases between employer and employee to recover damages for injuries received during employment, where the question of assumption of risk is involved, fall into one or the other of these classes.

The questions presented to the law court are whether upon the evidence the jury was warranted in finding, as they must have found: (1) That there was no contractual asumption of risk; (2) that there was no voluntary assumption of risk; and (3) that the injury was not caused solely by the plaintiff's negligence. In the last analysis the first two issues involve the finding that the defendant was negligent in accepting for transportation a car of lumber loaded in conformity to its rules, as the car in question was.

There is very little, if any, dispute as to the material facts. The plaintiff is a young man, 28 years of age, 6 feet tall, weighing 188 pounds, who had been employed by defendant as a brakeman since May, 1923; he was head brakeman in a "ring crew" operating extra freight trains between Waterville and Bangor; he was expecting to take his examination for a flagman's position in the near future; he appears to have been alert, familiar with his duties as head brake-man, and efficient—a fine type of employee.

The train crew left Waterville at 1:30 a. m. on the day of the accident, and arrived at Northern Maine Junction at 6 a. m.; the train west was already made up, consisting of 46 loaded cars, and with the same engine left on the return trip at 7:45 a. m. The morning was fair, the thermometer at 19 above zero at 7 o'clock. In this train were four flat cars of lumber near the forward end of the train, with one or two box cars between them and the tender. The last of these lumber cars designated as "B. & A. No. 70131," on which the accident happened, was a fully loaded car, the fifth or sixth car from the tender; in front of it was a partially loaded flat car of lumber; behind it was a box car.

All the lumber referred to, loaded on two cars of different destinations, was tendered by the Bangor & Aroostook Railroad Company to the defendant on January 30; the, cars were rejected because loaded in excess of the prescribed maximum weight; the Bangor & Aroostook Railroad Company reduced the load on each car to the maximum load by removing lumber from the top; the lumber so removed was loaded on other cars. The reloaded cars were again offered to defendant, on February 1 and accepted. The photographs of the cars taken upon arrival of the train at Waterville show that car B. & A. No. 70131 was a carload of mixed lumber; the lower part of the load was joist; above the joist were boards; lumber upon the car next in front, removed from the car in the rear, appears to be narrow boards, some tied in bundles.

After the engine was coupled to the train at Northern Maine Junction the plaintiff went along the side of the train inspecting the brakes and air hose, letting off the brakes, coupling the air hose, where necessary, and looking for air leaks; in performing this duty he passed the lumber cars four times; he then went forward to the engine. His place of duty was near the head of the train; when entering or leaving double track, or passing over a railroad crossing, or passing yard limits, it was this duty to be on top of the moving train; he must also be in a position, on the ground or on the train, to relay signals from the conductor to the engineer. It was customary for the head brake-man to ride in the engine cab; no printed rule of the road required it, nor was he ordered to do so. When the train left Northern Maine Junction the plaintiff was on the engine.

The first stop was at Newport for water, 21 miles from Northern Maine Junction; where the plaintiff was during this stop does not appear; he was on the engine when the train started from Newport. As the conductor swung aboard the caboose on the moving train, before it had cleared the Newport yard, his waybills dropped from his pocket; he applied the air brakes, and, as the train stopped, the plaintiff left the cab, went back on the ground, and climbed to the top of a car two or three cars in rear of the lumber cars, where he could relay the starting signal of the conductor. Having relayed the signal he started forward over the tops of the cars; he was not ordered to do so; there was no rule requiring him to go forward over the tops of the ears; such a rule manifestly would be...