Murphy v. Grand Trunk Ry. Co.

• Decision Date: 19 July 1904
• Parties: MURPHY v. GRAND TRUNK RY. CO.
• Court: New Hampshire Supreme Court

58 A. 835

73 N.H. 18

MURPHY

v. GRAND TRUNK RY. CO.

Supreme Court of New Hampshire. Coos.

July 19, 1904.

Transferred from Superior Court; Stone, Judge.

Action by Charles J. Murphy against the Grand Trunk Railway Company for injuries. At the close of plaintiff's evidence, defendant moved for nonsuit, which was denied, and, after verdict in favor of plaintiff, the case was transferred to the Supreme Court for a hearing on defendant's exception to the denial of such motion. Exception sustained.

The plaintiff's evidence tended to prove the following facts: At the time of his injury, the plaintiff had been employed by the defendant for about seven years, and had served as conductor for three and a half years. On October 30, 1901, his run was from Portland, Me., to Island Pond, Vt. He started from Portland with a freight train of 60 cars at about half past 5 in the morning. He had nothing to do with making up the train. A knuckle (a part of an automatic coupler) on the sixth car from the rear of the train was so defective that the train separated when about four miles from Portland, and near Falmouth; the immediate effect of the separation being to set the brakes on nearly every car. This caused two other couplings to separate, breaking the train into four sections. The first section consisted of one car, the second and third sections of from 20 to 30 cars each, and the rear section of 5 cars and the caboose. Such accidents are not uncommon, and when one happens it is the duty of the conductor to first send out flagmen, and then to learn the cause of the accident, and remedy it, if possible. In doing this work, the whole train crew act under the conductor's orders. When the wreck occurred, the plaintiff sent the rear brakeman back to flag trains, and then walked to the locomotive, and directed the engineer to put the forward car on the Falmouth siding. While this was being done, he fastened the second and third sections together with a chain, and directed the engineer to draw them upon the "passing track" at Falmouth. An attempt to execute this order having failed, the engineer drew the second section upon the passing track, and then backed the locomotive down, and chained it to the third section. At this juncture another train arrived, and the plaintiff decided to have the locomotive which drew the latter push the third and fourth sections of his train upon the passing track. In the execution of this design, he walked back to the rear of his train, and gave the necessary orders to the rear brakeman, who signaled to the engineer, and the latter coupled his locomotive to the fourth section. The plaintiff and brakeman then mounted the car where the first break occurred, but not that equipped with the defective coupler, and the section was pushed up to where the third stood. The plaintiff then directed the brakeman to couple the two sections, and started toward the head of the train, to disconnect the locomotive. About the time he reached his destination, the two sections came together. The plaintiff thought the coupling was made, but he did not stop to see whether it was or not, nor did he give the engineer the "stop" signal, usually given when work is to be done between cars, but stepped in between the locomotive and the car to which it was attached, for the purpose of taking off the chain. The coupling had not been made, and when the brakeman learned this he gave the engineer the signal to "slack back." The brakeman looked at the coupler on the end of the third section, found it defective, fixed it, and gave the engineer the signal to come ahead. At this attempt the coupling was made. When the cars came together the shock moved the whole of the third section ahead, caught the plaintiff between the forward car and the locomotive, and caused the injuries complained of. At the time of giving the last signal, the brakeman thought he saw the plaintiff standing beside the track near the locomotive; but the person he in fact saw was the head brakeman. The plaintiff knew that automatic couplers sometimes fail to unite on the first impact, and that if a stop signal was given to the engineer he would not start until he was signaled to do so.

Daniel J. Daley, Herbert I. Goss, and Drew, Jordan, Buckley & Shurtleff, for plaintiff.

Clarence A. Hight, Leroy L. Hight, and Chamberlin & Rich, for defendant.

YOUNG, J. The only ground on which the plaintiff claims to recover is the defendant's failure to furnish him with suitable instrumentalities with which to do his work; so the only questions raised by the defendant's motion are whether there was any evidence from which it could be found (1) that the defendant's failure to equip this car with a suitable coupler was the legal cause of his injuries; (2) that the danger from using this coupler in the condition it was in at the time of the accident was not a risk he assumed; and (3) that he was free from fault at that time. Only one of these questions will be considered, for although whether the plaintiff was free from fault, and whether the cause of a dangerous situation is the legal cause of an accident that results from that situation, are both questions of fact (Ela v. Cable Co., 71 N. H. 1, 51 Atl. 281; Aldrich v. Railroad, 67 N. H. 380, 36 Atl. 252; Nashua Iron & Steel Co. v. Railroad, 62 N. H. 159, 164), it will not be necessary to examine the evidence upon either point; for, if it is conceded that the defective coupler was a contributing cause, and not merely the occasion, of the accident, and that he was free from fault, he cannot recover because it conclusively appears that the danger from using the coupler in the condition it was in at the time of the accident was a risk he assumed.

It is the general rule that every one who voluntarily takes a particular position assumes the risk of all the dangers incident to remaining there of which he either knows or would know if he used ordinary care. Miner v. Railroad, 153 Mass. 398, 26 N. E. 994. By this is only intended that he assumes the risk of all the dangers of the situation that are apparent to his...