Piper v. Boston & M. R. R.

• Decision Date: 02 June 1908
• Citation: 72 A. 1024,75 N.H. 228
• Parties: PIPER v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

72 A. 1024

75 N.H. 228

PIPER

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

June 2, 1908.

[Copyrighted material omitted.]

Exceptions from Superior Court, Merri mack County; Pike, Judge.

Action by Harry L. Piper against the Boston & Maine Railroad. A demurrer to defendant's plea was sustained, and defendant brings exceptions. On motion for rehearing, exception sustained and case remanded. The defendant pleaded the general issue, and filed a brief statement setting forth certain agreements made prior to the accident between the plaintiff and the express company between the express company and the defendant, and also a release, under seal, given by the plaintiff after his injury to the express company and the defendant. The plaintiff replied that the special release was not his deed and was obtained by fraud, and demurred to the other matters of defense pleaded in the brief statement. The demurrer was sustained, and the defendant excepted. By his agreement with the express company, entered into in consideration of his employment, the plaintiff assumed "all risk of accidents and injuries which I shall meet with or sustain in the course of my employment, whether occasioned or resulting from or by the gross or other negligence of any corporation or person engaged in any manner in operating any railroad, * * * or of any employe of any such corporation or person, or otherwise," promised to "execute and deliver to the corporation or persons owning or operating any railroad * * * upon which I shall be so injured a good and sufficient release," and agreed that the provisions for waiver and release should be held to inure to the benefit of every railroad corporation upon whose lines the express company should forward merchandise. The agreement between the defendant and the express company provided that the railroad should "furnish to the express company, without charge, all requisite, reasonable, and necessary facilities, conveniences, and rooms in or connected with its stations and depots, for the care and handling of its express matter, and the loading and unloading thereof into and from the cars, with a view to the prompt dispatch of its business," and that the express company should "indemnify and save harmless the railroad from all claims for property damaged, injury to or death of person, which may be made by the officers, agents, or employees of said express company while acting in the scope of their employment." The release under seal was expressed to be in consideration of the payment of $05 to the plaintiff. The circumstances under which it was given and the facts relating to the accident in which the plaintiff was injured to evidence admitted subject to exception, and to instructions requested by the defendant and refused by the court, are stated in the opinion.

Henry F. Hollis, for plaintiff. Mitchell, Foster & Lake and Martin & Howe, for defendant.

PEASLEE, J. The demurrer to the plea which sets up the contract between the defendant and the American Express Company and that between the company and the plaintiff as a bar to the plaintiff's right of action was properly sustained. The contracts differ in no essential respect from those considered in Baker v. Railroad, 74 N. H. 100, 85 Atl. 386, 124 Am. St. Rep. 937. There was abundant evidence that the release was obtained by fraud. It appeared from the testimony of witnesses, and from the plaintiff's signature upon the release, that he was not in a normal condition at the time it was executed. He was not then able to read, and did not know that the paper was a release, or that it in any way concerned the defendant. He was not informed as to its contents, and supposed it was merely a voucher for his month's pay, which was the sum received. There was also evidence that, before he was sent for to go to the express company's office, he had been told by the party who obtained the release that his pay would be allowed to him while he was incapacitated. He had no idea that he was dealing with an agent of the defendant. It further appeared that the agent subsequently attempted to conceal the nature of the transaction from the plaintiff's wife, and assured her that the paper had no reference to the defendant. The exception to the admission of this evidence on this issue must be overruled. The defendant claims the benefit of the acts of the person obtaining the release, and is therefore chargeable with all his acts which are parts of that transaction. Rolfe v. Railroad, 69 N. H. 476, 477, 45 Atl. 251, and cases cited. It is urged in support of the motion to direct a verdict that the evidence brings the case within the class of which Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 420, is a type, rather than that of which Minot v. Railroad, 73 N. H. 317, 61 Atl. 509, 74 N. H. 230, 66 Atl. 825, is typical. That there was evidence of the defendant's fault is not open to question. It ran a shifting engine over the tracks through the passenger train shed in Concord in an unusual way at a high rate of speed and without warning. The real issue is upon the care of the plaintiff. There was evidence which would have warranted the jury in finding the state of facts related below. The plaintiff in the course of his employment as a servant of the express company went across the tracks in the station to a car standing on the track next east of the train shed. As he went he saw the shifter standing among the switches below the train shed and about 1,000 feet from him. It had been the custom, as he bad observed it in seven years' experience, for the shifter to wait there until train No. 5 came in from Boston. Until that time it had no business in the train shed. He had reason to think that no train or engine would pass over the tracks for more than ten minutes. Acting upon this belief, he recrossed the track without taking further precautions, and was struck by the shifter.

The defendant concedes that such facts would bring the case within the principles laid down in Minot v. Railroad, supra; but it insists that the plaintiff should have known the shifter might come up the track before train No. 5 came in. There are two tracks outside the shed used for shifting purposes. If both of these are blocked, an engine cannot pass from south to north except through the train shed. On the morning of the accident these outside tracks were blocked by cars which were to be shifted onto sidings at the northwesterly corner of the train sheds to make up the Hillsborough and Claremont trains. If the road engines came out from the roundhouse south of the station, and went to the yard north of the station in good season, they shifted their trains onto their respective sidings. If they were late out, the shifter placed the trains. The road engines were not out this morning. From these facts it is argued that the only way for the shifter to get to the head end of these trains was through the train shed, and that the plaintiff knew or ought to have known this fact and have been on the lookout. There are several answers to this proposition. It does not conclusively appear that the plaintiff knew the outside tracks were both blocked. It does not appear that he knew the road engines were not out; and it was only in that event that there would be any call for the shifter to go north. Lastly, there was nothing to prevent the shifter from pushing one of the trains up into the north yard and then proceeding in the usual way. The considerations here urged are merely evidentiary facts, tending to prove the defendant's contentions. They do not conclude the matter, nor authorize the withdrawal from the jury of the question whether these pieces of evidence or those leading to the opposite conclusion were of the greater weight. The motion to direct a verdict was properly denied.

Various exceptions to evidence are urged. The plaintiff testified on cross-examination, in response to the inquiry "How far is it from the place where you left the Hillsborough car to the place on the White Mountain track where you were hit?" "I don't know. They dragged me 117 feet." The defendant excepted to this, to expert testimony based upon it, and to the argument of counsel that it was probable that, when the plaintiff returned to work some two months after the accident, he would "go down and see how far they dragged him." The evidence was properly admitted. Glauber Mfg. Co. v. Voter, 70 N. H. 332, 333, 47 Atl. 612, and cases cited. The argument stated no fact not in evidence, but properly urged upon the jury's attention an established opportunity to obtain the knowledge testified to.

The plaintiff's testimony that he did not understand that the agent of the express company from whom he received the $65 represented the defendant was admissible upon the issue of fraud in obtaining the release.

The plaintiff's mental condition when be gave his deposition would be a fact to consider in determining the weight to be given to the answers he made. There was no error in allowing his wife to testify on that topic. While demeanor evidence is usually supplied by the actual observation of the witness, by the jury, yet when, as here, his appearance of nervousness and confusion, as the examination went on, could not be observed by them, it was properly put in evidence by the testimony of those who did observe it. 2 Wig. Ev. § 946. If he had testified on the stand and had manifestly become so wearied by the strain of the examination that his answers, which had theretofore been clear and responsive, became incoherent or confused, it would have been proper for the jury to consider this fact in determining the weight to attach to the later responses. The evidence that it would be safer to run the shifter over the outside tracks than over those in the train shed is excepted to upon the ground that it tended to prove negligence in a matter not involved in this suit. One issue in this case was whether it was...