Saunders v. Boston & M. R. R.

• Decision Date: 05 January 1927
• Citation: 136 A. 264
• Parties: SAUNDERS v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

136 A. 264

SAUNDERS

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Rockingham.

Jan. 5, 1927.

Transferred from Superior Court, Rockingham County; Sawyer, Judge.

Case for negligence by Harry E. Saunders against the Boston & Maine Railroad to recover for personal injuries incurred in defendant's employ. Transferred on plaintiff's exception to order of nonsuit. Judgment for defendant.

William H. Sleeper, of Exeter, and Oliver W. Marvin, of Portsmouth, for plaintiff.

George T. Hughes and Stanley M. Burns, both of Dover, for defendant.

SNOW, J. The plaintiff was employ ed to operate a one-man car upon the defendant's electric street railway running out of Portsmouth. He claims to have suffered a rupture while lifting, with others, in tilting a car to release one Rollins, a pedestrian, who had been run upon and wedged beneath the wheel guard. The negligence alleged is the defendant's failure to equip the car (1) with a fender or life guard, and (2) with a jack.

The accident occurred on March 20, 1923. The action is subject to the provision of section 2 of the Employer's Liability Act (Laws 1911, c. 163), there being no evidence that the defendant had filed a declaration under section 3 thereof. Spilene v. Salmon Falls Mfg. Co., 79 N. H. 326, 328, 108 A. 808. Assumption of the risks incident to the plaintiff's employment is not a defense.

1. The car had originally been equipped with a fender, of a type in common use in that section. It was so designed as to drop upon the rail when it came in contact with an object on the track, or whenever the motorman, observing such an object, should step upon a tripper pin in the vestibule floor. The fender had been removed because of trouble due to snow and ice, and the car had been operated by the plaintiff in this condition for more than a year. The plaintiff claims that the presence of a fender would have prevented the accident to Rollins, and thus obviated the necessity of tilting the car, assisting in which act the plaintiff ruptured himself.

It is unnecessary to consider the questions whether on the evidence it could be found that the defendant owed the operator a duty to maintain a fender under the conditions that existed, and that a fender would have prevented the accident to the pedestrian, or the further question, whether, on the record, it was "made to appear by a preponderance of the evidence the negligence of the plaintiff contributed" to the accident (Laws 1911, c. 163, § 2); for in any event the accident which had happened to Rollins constituted no more than the occasion for the subsequent action taken to remove him.

Whether an alleged cause is remote or proximate is generally a question of fact. Ela v. Cable Co., 71 N. H. 1, 3, 51 A. 281; Derosier v. Telephone & Telegraph Co., 81 N. H. 451, 402, 130 A. 145, and cases cited. When, however, such alleged cause is clearly no more than the occasion on which other causes operated to produce the result no question for the jury is presented. Electric Light Co. v. Jones, 75 N. H. 172, 180, 71 A. 871, and cases cited; Gage v. Railroad, 77 N. H. 289, 295, 90 A. 855, L. R. A. 1915A, 363; Caher v. Railway, 75 N. H. 125, 126, 71 A. 225, and cases cited; Bennett v. Odell Mfg. Co., 76 N. H. 180, 181, 80 A. 642; Deschenes v. Railway, 69 N. H. 285, 290, 46 A. 467. When successive causes which operate to produce a given result cease to be the occasion and become proximate to such result may sometimes be difficult of determination. The situation here, however, presented no nice question. Reasonable men could come to only one conclusion. The car had come to a stop, with the pedestrian pinned beneath it. The plaintiff now stood safely upon the ground. A new stage had been set in which the want of a protecting device designed to avoid the hazard of running upon travelers could play no part. All danger to the motorman arising from the want of a fender, if any, had ceased without any injury to him. It is not claimed that the absence of the fender in any way enhanced the danger of rescue.

2. The plaintiff, acting on the suggestion of a bystander, started for a nearby garage to secure a jack, but turned back upon receiving advice that an automobile jack would be inadequate. Accepting the voluntary assistance of men attracted to the scene of the accident, the plaintiff with their aid succeeded in tilting the car sufficiently to allow the removal of Rollins. It was while so engaged that he claims to have received his injury.

The defendant's contention that the plaintiff's duty was confined solely to the operation of the car, and that therefore he was not acting within the scope of his employment in attempting a rescue, is without merit. No such a limitation can be fixed as a matter of law. He had been sent out in charge of the ear. The extent of his duties, within limits not here involved, presented a question of fact. The test to determine whether in attempting to rescue Rollins he was acting within the scope of his employment is to inquire whether the ordinary man in the situation presented would have reasonably understood that he was expected to do so. Roussel v. Nashua Mfg. Co., 80 N. H. 254, 256, 116 A. 441; D'Ambrosio v. Railroad, 81 N. H. 119, 120, 124 A. 551; Ducas v. Cotton Mills. 81 N. H. 543, 545, 130 A. 156. The cases on which the defendant relies (McGill v. Granite Co., 70 N. H. 125, 46 A. 684, 85 Am. St. Rep. 618: Morrison v. Burgess Co., 70 N. H. 406, 47 A. 412, 85 Am. St. Rep. 634; Danforth v. Fisher, 75 N. H. 111, 71 A. 535, 21 L. R. A. [N. S.] 93, 139 Am. St. Rep. 670; Dionne v. Locomotive Co., 76 N. H. 17, 78 A. 923; Straw v. Shoe Co., 76 N. H. 35, 79 A. 495; Richardson v. Lumber Co., 77 N. H. 187, 90 A. 174; Dobek v. Mfg. Co., 79 N. H. 360, 109 A. 201; Manning v. Railway, 80 N. H. 404, 118 A. 386), do not sustain its contention. In no one of these cases was there evidence...