Patenaude v. Boston & M. R. R.

• Decision Date: 03 June 1913
• Citation: 87 A. 249,77 N.H. 74
• Parties: PATENAUDE v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

87 A. 249

77 N.H. 74

PATENAUDE

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

June 3, 1913.

Transferred from Superior Court, Hillsborough County; Chamberlin, Judge.

Action by Wilfrid Patenaude against the Boston & Maine Railroad. Transferred on plaintiff's exception to an order of nonsuit. Exception overruled.

The plaintiff was injured while stealing a ride on one of the defendants' freight trains in their yard at Nashua. A brakeman saw him hanging to the side of a box car at Stevens avenue, told him to get off, and threw coal at him when he refused. The crossing tender at Everett street saw what was going on, and assaulted the plaintiff so fiercely that he was compelled to get in between the cars or to jump from the train, which was moving so fast as to make the latter course unsafe. In trying to clamber in between the cars the plaintiff fell and was injured. He testified that the action of the crossing tender caused his injury.

Doyle & Lucier, of Nashua, for plaintiff.

Hamblett & Spring, of Nashua, for defendant.

YOUNG, J. Since the act of the crossing tender caused the plaintiff's injury, the test to determine whether the. court erred in taking the case from the jury is to inquire whether it can be found that the crossing tender was employed to remove trespassers from passing freight trains or to assist in removing them. Turley v. Railroad, 70 N. H. 348, 47 Atl. 261. There is no evidence either as to what this crossing tender was employed to do, or as to what crossing tenders are ordinarily employed to do; and, it is not common knowledge that it is a part of their ordinary duty to assist in removing trespassers from passing freight trains.

The plaintiff contends that it was the defendants' duty to do whatever was reasonably necessary to protect him from injury if they ought to have anticipated the action of the crossing tender in case the plaintiff attempted to steal a ride on one of their freight trains. If it is conceded that railroads owe trespassers that duty, there is more than one answer to this action. One is that it cannot be found that the defendants either knew, or ought to have known, that their crossing tender (or, for that matter, any of their servants) might assault the plaintiff. The only evidence relevant to that issue is the testimony of the plaintiff and his brother. They testified that they had been familiar with this part of the defendants' road for a long time, that they and others had been...