Nugent v. Boston, C. & M. E. Corp.

Citation12 A. 797,80 Me. 62
PartiesNUGENT v. BOSTON, C. & M. E. CORP.
Decision Date25 January 1888
CourtSupreme Judicial Court of Maine (US)

On motion and exceptions, from supreme judicial court, Cumberland county.

Action on the case for personal injuries. The opinion states the facts. The verdict was for the plaintiff in the sum of $3,100, and the defendant filed exceptions and a motion for new trial.

Wilbur F. Lunt and Joseph W. Spaulding, for plaintiff. Almon A. Strout, for defendant.

VIRGIN, J. By a contract of March 1, 1884, the Portland & Ogdensburg Kailroad Company, for certain valuable considerations therein expressed, was permitted, among other things, to run all of its through freight trains, for one year at least, over that portion of the defendant's tracks between certain named stations, between which was the Bethlehem station; the defendant "assuming all liability and risk of accident arising from defect of road-bed or track, or default of its employes or servants." On June 19, 1884, while the permit was in full force, the Boston & Lowell Railroad Company leased for 99 years the defendant's railroad, stations, etc.; agreeing to save harmless the defendant "against all claims for injuries to persons during the term, from any and all causes whatever." The plaintiff was rear brakeman on a Portland & Ogdensburg special freight train, bound west. While he, in pursuance of a signal for setting brakes, was rapidly ascending the iron ladder on the side of a box car to perform his duty of setting the brake thereon, the train being in motion, his head came in contact with the end of the depot awning, of same height as the car, and 18 inches therefrom, and he was thereby knocked off between the cars, and, before he could extricate himself, his right arm was so crushed by the wheels of the saloon cat that amputation became necessary. The jury, after a charge to which, so far as the general merits of the case is concerned, no exception is alleged, returned a verdict for the plaintiff for $3,100. Under the instructions, the jury must have found (1) that the awning was negligently constructed on account of its proximity to the passing car; (2) that the injury was caused solely thereby; and (3) that the plaintiff was in the exercise of ordinary care at the time of the injury.

It is contended that the plaintiff was guilty of contributory negligence, and that, as the facts in relation thereto were undisputed, the question was one of law, and should therefore have been decided by the presiding justice, which he declined to do, but submitted it to the jury. While there are numerous cases wherein questions of the negligence of both parties, in actions of this nature, have been decided by the court on undisputed facts, still the negligence of neither party can be conclusively established by a state of facts from which different inferences may be fairly drawn, or upon which fair-minded men may reasonably arrive at different conclusions. Brown v. Railroad Co., 58 Me. 384; Lesan v. Railroad Co., 77 Me. 85, 91; Shannon v. Railroad Co., 78 Me. 52, 60,2 Atl. Rep. 678; Snow v. Railroad Co., 8 Allen, 441; Treat v. Railroad Co., 131 Mass. 371; Peverly v. Boston, 136 Mass. 366; Lawless v. Railroad, Id. 1; Railroad Co. v. Stout, 17 Wall, 657, 663, 664. As a practical illustration of this proposition: The conductor of a freight train had resided at the place of accident for 20 years, and, as conductor and brakeman, passed the station once or twice daily for 7 years. Just as his train started up, he caught hold of the side ladder of a passing car, and, without any call of duty there, as he climbed towards the top, was struck and killed by the roof of the depot which projected over, and within 34 inches of the car, and the court was divided on the questions of negligence involved. Gibson v. Railway Co., 63 N. Y. 449. So in another case where a brake-man (the plaintiff) who had pulled out the pin and disconnected a portion of the train from the engine, was walking beside the train, and, on signal for brakes, ran up the side ladder of a car, and was struck, knocked off, and lost his arm, by the awning which projected within 18 inches of the car, the court held the plaintiff not guilty of contributory negligence, but set aside the verdict of $10,000 as excessive. The court remarked: "It would be preposterous in us to say, or to ask a jury to say, that a brakeman, engaging in the service of the company, must be held to know whether or not there may be one among the station houses whose roof or awning so projected over the line of the road, that a brakeman on a freight train, in the performance of his duties, would be liable to be swept from the train by collision with it." Railroad Co. v. Welch, 52 Ill. 183. We are of opinion that the presiding justice very properly submitted to the jury the question of the defendant's negligence, and also that of the plaintiff's exercise of ordinary care.

Moreover, a careful examination of all the testimony bearing upon these questions, aided by the exhaustive argument of counsel, has failed to satisfy us that we ought to interpose and set the verdict aside. And, without taking space to state our reasons at length, we remark: The train never stopped at this station, except when obstructed by another, and occasionally down by the tank for water. His attention was never particularly called to the nearness of the awning, as he had no occasion to notice it in passing. When the accident happened the plaintiff was engaged in the prompt performance of a call to active duty. The exigency caused by the repeated starting and stopping of the mixed train required his speedy ascent to the top of the car by means of the ladder. Before he reached it his car, being in motion, arrived at the awning. Due care on the part of the defendant required space enough between the car and the awning for reasonable action of body, arms, and legs of the brakeman, whose duty required him to ascend the ladder there. It was. deficient in this respect, and the plaintiff, with his attention properly fixed on his duty, was struck. It is no answer that the train, though on a down grade of 30 feet to the mile, might be handled by the engine when working steam. The plaintiff's duty was not to rely on the possibility of the engine's holding the train, but to perform the duty signaled by the conductor standing on the engine; and he lost his right arm in the prompt attempt to perform it, in consequence of the defendant's faulty awning. The acts of the plaintiff "cannot be judged of by the rule applicable to the persons engaged in no special or particular duty." The plaintiff's previous knowledge of the awning must, on account of his few opportunities for gaining it, have been comparatively slight, and was by no means decisive. "The service then and there to be performed was of a character to require his exclusive attention to be fixed upon it, and that he should act with rapidity and promptness; and it could hardly be expected that he should always bear in mind the existence of the defect, even if he knew it, or be prepared at all times to avoid it." Snow v. Railroad Co., 8 Allen, 441, 450.

But while this rule may not be seriously questioned as between a railroad company and its own employes, the defendant challenges its application as between it and the plaintiff. This presents the question whether a railroad company, over a section of whose track another company—by virtue of a contract—runs its trains, is liable in tort to to the latter's brakeman, who, without the fault of himself or of his co-employes, receives a personal injury while in the performance of his duty on his employer's train, solely by the reason of the negligent construction of the former's depot. We are of opinion that it is. In such case, the only materiality which attaches to the contract between the companies is to make certain that the plaintiff was lawfully, and not a trespasser, on the defendant's road. And although the defendant, in its contract with the Portland & Ogdensburg company, in express terms "assumed all liability and risk of accident from a defect of road-bed, track, or default of its employes," nothing was thereby added to the defendant's legal obligation and duty; these terms did not express all which the law required of railroad companies as to the reasonable safety of its station-houses. Tobin v. Railroad Co., 59 Me. 183. It is common learning that as a compensation for the grant of its corporate franchise, intended in large measure to be exercised for the public good, the common law imposed upon the defendant a duty to the public, independent of contract and co-extensive with its lawful use, to keep its road and its appurtenances in a reasonable, safe, and proper condition. Thomas v. Railroad, 101 U. S. 71, 83; Bean v. Railroad Co., 63 Me. 293, 295. If the cause of action were a breach of the contract, the plaintiff could not maintain an action thereon for want of privity. But this is an action, ex delicto, for an injury caused by a neglect of a duty created by law. Broom, Com. Law, (4th Ed.) 675,676, and cases; and, for the neglect of such a duty, privity is not essential to the maintenance of an action of tort therefor.

Campbell v. Sugar Co., 62 Me. 552, 564; Broom, Com.Law, 673 et seq. This principle is variously illustrated by the numerous cases cited in Broom, Comm. 655, 670, thus: A railroad company is liable for the loss of a passenger's luggage, whose fare was paid by another, not on account of breach of contract, but of legal duty. Marshall v. Railroad Co., 11 C. B. (73 E. C. L.) 655. So, where the defendant sold naphtha to one known to him as a retailer of fluids, to be burned in lamps for illuminating purposes, and a retailer sold a pint thereof to the plaintiff to be used in a lamp, and it exploded, the defendant was held liable, "not upon any supposed privity between the parties, but upon a violation of duty in the defendant, resulting in an injury to the...

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