New York, N.H. & H.R. Co. v. O'Leary

• Decision Date: 14 April 1899
• Docket Number: 266.
• Citation: 93 F. 737
• Parties: NEW YORK, N.H. & H.R. CO. v. O'LEARY.
• Court: U.S. Court of Appeals — First Circuit

93 F. 737

NEW YORK, N.H. & H.R. CO. v. O'LEARY.

No. 266.

United States Court of Appeals, First Circuit.

April 14, 1899

Robert W. Nason and Thomas W. Proctor, for plaintiff in error.

Edward H. Pierce, for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

PUTNAM Circuit Judge.

The plaintiff below (now defendant in error) was a brakeman on the freight trains of the plaintiff in error (defendant below). The accident occurred in December, 1897, on the Providence Division, on the main line of the railroad of the plaintiff in error, between two stations, each of which is within the limits of the city of Boston. It is a matter of common knowledge, of which the jury was entitled to avail itself, that on this portion of the line a very large amount of traffic is done; thus making reasonable diligence on the part of the plaintiff in error in caring for its roadbed and its appurtenances to include great promptness and vigilance. The cause of the accident was a guy, supporting a derrick which was stretched over the tracks of the plaintiff in error by one O'Connell, who was working outside the line of the railroad, under a contract with the city of Boston, changing the location of Stony brook. O'Connell had previously had a guy over the track, but on December 15, 1897, he moved his derrick, and, in that connection, stretched another guy, or moved the old one; the record on this point not being clear and it not being a matter of any importance for this case whether it was one or the other. O'Connell testified that he had obtained permission from the plaintiff in error through its superintendent, to move the guy, or to run the additional one, whichever it was. His testimony as to this was not contradicted nor questioned. This is important showing that O'Connell was not a trespasser in stretching the guy, and that the plaintiff in error knew in advance that it was to be stretched, and so had the opportunity of exercising proper vigilance and care to prevent it from being set so low as to endanger the operation of its railroad. The guy was stretched on the afternoon of December 16th. There was evidence pro and con on the issue whether instructions had been given by the section foreman that the guy must be at least 22 feet above the track. But its height had not been measured, and the record does not show that the flagman who was left by the section foreman to watch the work was given any instrument with which he could measure it. The plaintiff below testified that he came into Boston on a freight train that night on track 2, there being four tracks at that point, and that he did not observe the guy, nor come in contact with it. He would not necessarily have done the latter unless he had been standing on a car, and the guy might have been higher over track 2 than over 3, where he was injured. The next morning his train ran out on track 3, and while he was standing on the top of a car, with his back to the head of the train, exchanging signals with the conductor, the guy struck him in the neck, and caused the injury for which this suit was brought. There was no evidence nor presumption that he either saw the guy in its new position, or that he could have seen it unless he omitted attending to his duties as a brakeman exchanging signals.

There are three counts in the declaration. The third is the usual count at common law, charging negligence on the part of the plaintiff in error, and alleging care on the part of the defendant in error. Each of the other counts closes with the allegation that it is based on St. Mass. 1887, c. 270. The first refers to that part of the statute which relates to the condition of 'ways, works and machinery' of an employer, and the second to that part which relates to the negligence of a person in the service of a common employer, 'entrusted with and exercising superintendence.' The damages claimed under the third count were $20,000, and under each of the others $4,000, the maximum allowed by the statute. The verdict was a general one for $3,625. Each of the counts which refer to the statute alleges every fact necessary to hold the plaintiff in error liable under the common-law count; so that, as also the damages awarded were less than the statutory maximum, the condition of the plaintiff in error could not have been in any manner impaired by the fact that the jury, in determining its verdict, let it turn on the statutory counts rather than on the common-law count, or vice versa. This observation relates, not only to the question of damages, but to all the other matters involved in the suit.

There were sundry exceptions taken by the plaintiff in error to the rulings of the court on matters of evidence, and a great many exceptions to its rulings and refusals to rule in connections with its charge. The bill of exceptions states that it contains all the evidence except that relating to the extent of the injuries to the defendant in error, which is not material to any exception taken. We are therefore in a condition to determine, not merely how far any ruling or refusal to rule was theoretically correct, but how far it affected the proper result of the suit.

During the course of the trial the court admitted, subject to exception by the plaintiff in error, evidence of the contents of a letter from the road master of the plaintiff in error permitting the derrick to be moved, and giving directions to the section foreman to send a flagman to do the necessary flagging. This evidence was admitted after the witness, who was the section foreman, had been asked whether he could find the letter, and had answered with an unqualified 'no.' The only objection found in the record is as follows: 'The witness was asked by the plaintiff the contents of the letter. To this the defendant objected. ' It is impossible to tell from this whether the objection was to the subject-matter of the letter, or to the admission of its contents without further evidence of its loss. The witness' positive answer that he could not find the letter was sufficient to justify the court in admitting proof of its contents, in the absence of anything showing that either party desired to examine the witness further. But, independently of this, if the defendant below had intended to object on the ground that the original of the letter should be produced, it should have stated the grounds of the objection, in order that the court or the other party might have been put on guard, and have made further examination of the witness, if it was deemed proper, and thus possibly have entirely obviated all doubts. The rule has been laid down over and over again by the supreme court, and in such explicit terms as ought to terminate all assignments of errors of this character. It applies wherever the evidence objected to could be admitted under any circumstances. A full statement of it will be found in Noonan v. Mining Co., 121 U.S. 393, 400, 7 Sup.Ct. 911; and a reference to the general principles underlying it...