Rockwell v. Hustis

• Decision Date: 29 June 1918
• Parties: ROCKWELL v. HUSTIS. HOLDEN v. SAME.
• Court: New Hampshire Supreme Court

104 A. 127

ROCKWELL

v. HUSTIS.

HOLDEN

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

June 29, 1918.

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

Two actions, by Dearborn S. Rockwell and by Henry Holden, against J. H. Hustis, receiver of Boston & Maine Railroad. The cases were tried together, and resulted in verdicts for plaintiffs, and a denial of defendant's motions for nonsuit and directed verdict, subject to exceptions. Cases transferred; exceptions overruled; judgments on verdicts.

Doyle & Lucier, of Nashua (A. J. Lucier, of Nashua, orally), for plaintiffs.

Jones, Warren, Wilson & Manning, of Manchester (Geo. H. Warren, of Manchester, orally), for defendant.

WALKER, J. The evidence tended to show the following facts: The plaintiffs were employed by the defendant as section hands, and were engaged in that employment when they received the injuries on account of which these suits were brought. They were riding upon a motor-driven section car with six other employes, and on account of the size of the car they were obliged to sit close together upon a narrow seat running lengthwise of the car, four facing in one direction and four in the other. Upon the floor were various tools used by them in their work, which prevented them from placing their feet firmly upon the floor. There was an iron rail two or three inches high upon the sides of the car, upon which they put their feet to support themselves. The car was going at the rate of 10 or 12 miles an hour on a curve in the track of about four degrees. One of the men, Thompson by name, who was sitting at the front end of the car on the left-hand side, for some reason lost his balance, his feet came in contact with the forward wheel of the car, and he fell or was drawn under the wheel, which passed over his body, inflicting fatal injuries. As a result the car was derailed, and the other men were thrown from the car. In this way the plaintiffs received their injuries.

Several grounds upon which a recovery is sought have been argued. But upon a motion for a nonsuit, if one of them is in law sufficient, the others need not be considered. No exceptions were taken to the charge of the court. The claim is made that the foreman of the crew who operated the car managed it in a negligent manner, which caused Thompson to be thrown or pulled under the wheel, and consequently that his negligence was the proximate cause of the plaintiffs' injuries. As it is conceded that the action is governed by the federal statute (Act April 22, 1908, c. 149, 35 U. S. Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) the fellow-servant doctrine has no application. Topore v. Railroad, 78 N. H. 311, 100 Atl. 153. The contention of the defendant is that...