Story v. Concord & M. R. R.

CourtSupreme Court of New Hampshire
Citation70 N.H. 364,48 A. 288
PartiesSTORY v. CONCORD & M. R. R. et al.
Decision Date27 July 1900
48 A. 288
70 N.H. 364

CONCORD & M. R. R. et al.

Supreme Court of New Hampshire. Hillsboro.

July 27, 1900.

Exceptions from Hillsboro county.

Action by William A. Story against the Concord & Montreal Railroad and the Boston & Maine Railroad. From a judgment in plaintiff's favor against the Concord & Montreal Railroad, it excepts. Exceptions overruled.

Case to recover for injuries received August 26, 1894, in the railroad yard at Portsmouth, by the derailment of an engine of the Concord & Montreal Railroad on which the plaintiff was fireman. The plaintiff was the servant of the Concord & Montreal Railroad. It was alleged that the derailment was due to the defective condition of the track, which was owned and repaired by the Boston & Maine Railroad. The suit was brought against both corporations. At the opening of the trial the defendants moved for separate trials, and that the plaintiff be required to elect against which defendant he would then proceed. The motion was denied, subject to exception. The defendants' motion for a nonsuit was also denied, subject to exception. At the close of the evidence a verdict was ordered for the Boston & Maine Railroad. Subject to exception, the court refused to direct a verdict in favor of the other defendants, the Concord & Montreal Railroad. The facts and other exceptions taken are stated in the opinion.

Burnham, Brown & Warren and Samuel W. Emery, for plaintiff.

Oliver E. Branch, William H. Sawyer, and Frank S. Streeter, for defendants.

PARSONS, J. Whether Justice and convenience required separate trials was a question of fact determined by the ruling of the presiding justice. Eames v. Stevens, 26 N. H. 117, 121.

The Boston & Maine Railroad having been discharged by a verdict in their favor, to the direction of which by the court no exception appears to have been taken, the only question is whether, upon the facts stated, the verdict found by the jury against the Concord & Montreal Railroad should stand. As the case is presented to us, the Concord & Montreal Railroad are the sole defendants.

It appears that the plaintiff, a locomotive fireman in the employ of the defendants, was injured while in the course of his duty because of a defect in the track, as he alleges, over which, by direction of his employers, the locomotive upon which he worked was passing. The track claimed to be defective was not a part of the defendants' railroad, but was owned and kept in repair by another railroad corporation, which had exclusive control over it. The plaintiff knew these facts. The use of this track by the defendants was rightful, but the precise terms upon which

48 A. 289

they enjoyed such use did not appear. At the trial the defendants' motion that a verdict be ordered for them was denied. The first question considered under the defendants' exception to the denial of this motion is whether the fact that the alleged defective track was neither owned, managed, nor kept in repair by the defendants, to the plaintiff's knowledge, relieves them of liability for nonperformance of the master's duty to provide suitable and safe nppliances for the use of the servants in his employment 'This duty may be, and, in case the employer is a corporation, must always be, discharged by agents and servants; and the agent or servant charged with its performance, whatever his rank of service may be, stands in the place of the employer, who thereby becomes responsible for his acts, and chargeable with the negligence of such agent or servant." Jaques v. Manufacturing Co., 66 N. H. 482, 484, 22 Atl. 552, 13 L. R. A. 824; Pierce, R. R. 309. As the employer is not discharged by delegating this duty to a servant or a number of servants, the delegation of the duty to a corporation, as servant or agent, would not relieve him. What the contract for the use of the Boston & Maine track by the defendants was, is immaterial. Neither road, by agreement with the other, could relieve the other of any liability as to third persons which the law imposes. Under whatever names they were styled in their agreement, if there was one, the undisputed fact of the rightful use by the defendants of a portion of the Boston & Maine tracks, cared for and repaired by the Boston & Maine, established that the Boston & Maine were the agency employed by the defendants in the performance of their duty of furnishing a safe and suitable track for their employes. Having, either by express agreement or by permissive use of the Boston & Maine track, employed that corporation as their agent in the performance of their master's duty, the defendants thereby become responsible for the acts and chargeable with the negligence of such agent; and, as the corporation thus made the defendants' agent and servant could act only through their agents and servants, the defendants became responsible for the acts and chargeable with the negligence of the individual employes of that corporation, who were personally charged with the duty of inspection and repair owed by the defendants to their servants. Murch v. Railroad Corp., 29 N. H. 9, was au action by a passenger of the Northern Railroad to recover for injuries alleged to have resulted to hint from a defect in the track of the Concord Railroad, of which, at the point and time of the alleged injury, the Northern Railroad was in permissive use. In the decision of the questions thereby arising this court said (page 35): "By using the railroad of another corporation as a part of their track, whether by contract or mere permission, they [the Northern] would ordinarily, for many purposes, make it their own, and would assume towards those whom they had agreed to receive as passengers all the duties resulting from that relation as to the road; and if accident resulted to such passengers from any failure of duty of the owners of the road, for which they would be responsible if the road was their own, their remedy over would be against the owners." In that case the plaintiff's claim against the Northern Railroad arose from his contract of carriage. In the present, the plaintiff relies upon the obligations implied in his contract of employment. Fifield v. Railroad Co., 42 N. H. 225. Though the requirements of the contract in the case of a passenger and an employe differ in degree, the principle upon which the claim of each is founded is the same,—the failure of the other party to the contract to exercise such care as is demanded by the relation mutually assumed. As stated by Knowlton, J., in Engel v. Railroad Co., 100 Mass. 260, 263, 35 N. E. 547, 22 L. R. A. 283: "The duty of a railroad corporation to furnish for its employes safe tracks, cars, locomotive engines, and other machinery, tools, and appliances with which its business is to be carried on, is similar in kind to its duty to passengers in these respects, although the degree of care required is less. In either case its duty is the same when the tracks * * * are hired or used under a license from others as when they are owned by the employer." Spaulding v. Granite Co., 159 Mass. 587, 34 N. E. 1134; Railroad Co. v. Ross, 142 Ill. 9, 31 N. E. 412; Stetler v. Railway Co., 46 Wis. 497, 1 N. W. 112; Id., 49 Wis. 609, 6 N. W. 303; Railway Co. v. Cagle, 53 Ark. 347, 14 S. W. 89; Smith v. Railroad Co. (C. C.) 18 Fed. 304.

It is suggested that, since the defendants' trains were rightfully using the Boston & Maine tracks, that corporation owed to the defendants and their servants the duty of maintaining the track in a reasonably safe and suitable condition for use,—a duty arising, not out of contract, nor from the relation of master and servant, but which the law imposed upon the grounds of public safety. It may be assumed that this claim correctly states the law. Pierce, R. R. 274; Sawyer v. Railroad Co., 27 Vt 370; In re Merrill, 54 Vt. 200; Snow v. Railroad Co., 8 Allen, 441; Robertson v. Railroad Co., 160 Mass. 191, 35 N. E. 775; Nugent v. Railroad Co., 80 Me. 62, 12 Atl. 797. But the liability of the owner of the track, if established, does not relieve the defendants of their master's duty. "In many instances several parties may be liable in law to the person injured, while as between themselves some of them are not wrongdoers at all." Nashua Iron & Steel Co. v. Worcester & N. Railroad Co., 62 N. H. 159, 160. As the case now stands, there is no question of joint liability. The Concord & Montreal are the sole defendants. That parties are not jointly liable for an injury, because not jointly negligent does

48 A. 290

not establish that they are not severally liable. Mulchey v. Society, 125 Mass. 487; Parsons v. Winchell, 5 Cush. 592; Shear. & R. Neg. §§ 244, 248; Busw. Pers. Inj. § 31. That the parties are not joint tort feasors, so as to be jointly liable in trespass, does not establish that each may not be a wrongdoer as to the party injured. One who is liable for an injury may recover of another wrongdoer the sums he has been compelled to pay by the latter's negligence, if, as to the latter, he is without fault Nashua Iron & Steel Co. v. Worcester & N. Railroad Co., supra; Railroad Co. v. Slavens, 148 Mass. 363, 19 N. E. 372. Whether, under the circumstances, there would be a right of recovery of one corporation from the other, it is not necessary to inquire. It is sufficient that such right, if existent, does not affect the plaintiff. The defendants' breach of duty for which the plaintiff seeks to recover is severable and distinct from the breach of duty for which it is suggested the Boston & Maine might be liable to the plaintiff. The wrong of one does not excuse or justify the wrong of the other.

It is also suggested that the plaintiff assumed the risk of running over a track owned by another railroad, and which he saw was repaired by the employes of that corporation, and not by the employes of the defendants. That the servant assumes the risks ordinarily incident to his service, and also the special hazards arising from the...

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