Olney v. Boston & M. R. R.

• Decision Date: 03 June 1902
• Citation: 71 N.H. 427,52 A. 1097
• Parties: OLNEY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

52 A. 1097

71 N.H. 427

OLNEY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

June 3, 1902.

Transferred from superior court; Pike, Judge.

Action by Austin J. Olney against the Boston & Maine Railroad. Verdict for defendant, and case transferred on plaintiffs exceptions. Exceptions sustained.

The plaintiff, an engineer of experience, was employed by the defendants in running a freight train from Woodsville. At the time of his injury the engine upon which he was then riding had been used by him daily, Sundays excepted, for about 10 months. On the side of the engine, at the forward end, and below the base of the smokestack, was an arm hole, over which was a cover. A little below the arm hole, and farther ahead, was a signal lantern like those in general use upon locomotives, which for a long time had been used by the plaintiff and his fireman as a means of support when passing to a point farther along on the engine. On the right side of the cab a door opened outward upon a running board or walk, intended for use when the engine was in motion or at rest, which extended along the side of the boiler toward the arm hole. Above the running board, and intended as a means of support for persons walking thereon, was a hand rail, which extended toward the front of the engine to a point just beyond the steam chest, but did not reach as far forward as the arm hole by about 12 inches. The plaintiff was injured on Monday, November 30, 1896. About seven or eight mouths prior to that date, while upon his run, he discovered that the arm hole cover had become so worn as to be out of order, and in consequence of the lack of repair had worked loose. He went out of the cab door along the running board, and tightened the cover by pressing it in with one hand and pulling the handle with the other, so that the lips on the cover gripped wedge-shaped ridges designed for this purpose. On Thursday before the accident, and while the engine was in motion, the cover again became loose, and the plaintiff tightened it as before. Upon reaching Woodsville that afternoon, he informed the foreman of the repair shop of its condition, and the latter said he would have it fixed that afternoon, but failed to do so. The next day the plaintiff saw that the repairs had not been made; and on the following day the cover again became loose while on the road, and the plaintiff tightened it in the manner above described. Upon his return to Woodsville that afternoon he again told the foreman of the defendants' repair shop that the cover was defective, and said it was not fit to make another trip with. The foreman said it should be repaired before the plaintiff's trip on Monday. According to the regulations of the road, it was the duty of all engineers to inspect their engines before starting upon any trip, to see that they were "in proper condition for the service required, and, if not, to put them in proper condition, or know that they are so, before using them." The plaintiff customarily made this inspection the evening before starting, after the engine was housed; and as a part of his duty he so made it in this instance. The plaintiff relied upon the promise of the foreman that he would repair the arm-hole cover, and did not examine it after Saturday to ascertain whether he had done so. Monday morning, while running out of the Woodsville yard at a speed of four or five miles an hour, the plaintiff discovered that the cover had not been repaired, and, in consequence, was again loose. Thinking that it would fall if not tightened, he went out through the cab door, and along the running board, grasping the hand rail with Ills left hand until he reached the end of the rail, when he stepped down upon the top of the steam chest, and then, releasing his hold upon the rail, reached for the cover to take hold of it with both hands,—the use of both bauds being necessary in securing it in place. The plaintiff did not succeed in grasping the cover handle, for just as he touched the cover it fell out. "Naturally," "Involuntarily," "instinctively, and without time to think about it," as he testified, he grabbed for the cover as it fell. In doing so he lost his balance, and in falling caught the top of the signal lamp, which, in consequence, was torn apart, and failed to prevent his fall to the ground, by which he was injured. The plaintiff testified that when the cover was loose the arm hole emitted smoke and sparks, endangering property, and affecting the draft so that the engine would not steam properly; that there was also great danger to life and property from the liability of the cover to drop off and cause a wreck by getting under the trucks or into the cross-head; that these dangers could be averted in less time by the method he adopted than by stopping the engine; that his method was a proper one under the circumstances; and that he did not suppose the lantern was stronger or different in any particular from other signal lamps in use. There was no evidence tending to show that it was different in any particular. At the close of the plaintiff's evidence, and subject to his exception, a verdict was ordered for the defendants.

Burnham, Brown & Warren, for plaintiff.

Oliver E. Branch and William H. Sawyer, for defendant.

PARSONS, J. The claim that the case does not disclose evidence tending to show a want of due care on the part of the defendants in the performance of their masters' duty to provide a reasonably safe machine for the use of their employs, is not sustained by the record. The evidence was directly to the fact that the loose hand-hole cover rendered the engine unsafe, and that the defendants, in the person of the individual vested with the duty of repair, had been notified of the defect, and had promised to make the needed repair. It cannot be said that these facts do not furnish evidence from which the failure to make such repair might be found to constitute negligence. For the negligence of the agent to whom the defendants had intrusted their masters' duty of providing safe and suitable machinery, the defendants are liable. Jaques v. Manufacturing Co., 66 N. H. 482, 22 Atl. 552, 13 L. R. A. 824. The defendants contend that the negligence of the defendants was not the proximate cause of the injury. "In this state it is well settled that the question of remote and proximate cause is a question of fact to be determined by the jury." Ela v. Cable Co., 71 N. H. 1, 3, 51 Atl. 281. The question is whether there is evidence upon which the finding that the defendants' negligence was the legal cause of the injury can properly be made. McGill v. Granite Co., 70 N. H. 125, 129, 46 Atl. 684. The plaintiff's evidence was that, upon observing that the cover was loose, he shut off steam, and at once went forward upon the engine, as it was his duty to do, for the purpose of putting it into place; that he stepped down onto the steam chest; that as he reached for the handle of the cover, and just as he touched it, it suddenly fell, causing him instinctively and involuntarily to reach for it, whereby he lost his balance, and was injured; and that there was no sudden lurch of the engine, which at the time was moving at a speed of four or five miles an hour. The case distinctly states that the looseness of the cover discovered by the plaintiff was "in consequence of the lack of repair." Upon this evidence it would not be unreasonable to infer that it fell because of the lack of repair. That such a cover might fall, if not securely fastened, is not only reasonable, but probable; and that its fall might produce an accident to the train and injury to the trainmen is also a reasonable conclusion upon the evidence. The causal connection between the defendants' negligent failure to repair and an injury received by the plaintiff in such an accident, occurring either without discovery of its condition or after discovery before the train could be stopped, would be too plain for argument. Also, if the plaintiff had been going forward upon the engine to adjust the headlight, in innocent ignorance of any defect in the fastening of the cover, and, while passing upon the steam chest, was caused to lose his balance and fall by the sudden dropping of the cover, it would seem plain that the fall of the cover was the proximate cause of the injury, and that, if such a fall were due to the defendants' negligent repair of the cover, the causal connection between the defendants' negligence and the plaintiff's injury would be in no degree remote. The fact that the engineer observed the looseness of the cover, went forward to adjust it, and was preparing to do so when it fell, does not destroy the causal connection between the defendants' negligence and the injury, but raises the question whether an intervening responsibility of the plaintiff, not present in the case suggested because of his supposed ignorance without fault, has relieved the defendants from liability. It is...