Sweeney v. Boston & M. R. R.

• Citation: 174 A. 676
• Parties: SWEENEY v. BOSTON & M. R. R.
• Decision Date: 04 September 1934
• Court: Supreme Court of New Hampshire

174 A. 676

SWEENEY

v. BOSTON & M. R. R.^*

Supreme Court of New Hampshire. Hillsborough.

Sept. 4, 1934.

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

Action by Elizabeth Sweeney, administratrix, against the Boston & Maine Railroad. A nonsuit was granted subject to exception, and case was transferred.

Judgment for defendant.

Case, for negligently causing the death of the plaintiff's intestate. The declaration is in two counts, one under the Federal Employers' Liability Act (U. S. Code, tit. 45. c. 2 [45 USCA §§ 45-51]), and the other under the state law (Pub. Laws 1926, c. 178, § 1 et seq.).

The plaintiff's intestate, an experienced section foreman, was instantly killed in a head-on collision between a motor work car which he was operating and the locomotive of an extra work train. Before leaving his house on the morning of the accident, the deceased telephoned to the ticket office at the Nashua Union Station and also to the yardmaster's office for the purpose of finding out if extra trains were to be run over his section. He did not get a connection with either office. He also called personally at the Nashua City Station where orders were sometimes left for him concerning extra trains, but found none, nor were any orders left for him at the tool-house where the motorcar was kept. In spite of his lack of knowledge of anything but scheduled train movements, he set out with his crew on the customary morning inspection of his section which extended from Nashua to the vicinity of Milford on the Keene branch of the defendant's line.

The trip west was accomplished without incident. At Milford the motorcar was turned around and the return journey begun. As they proceeded back toward Nashua, the deceased sat on the left side of the motorcar with one of his crew in front of him. The other three members of the crew sat on the right side of the car. A lookout both before and behind was supposed to be maintained for the purpose of discovering defects in the roadbed as well as approaching traffic.

When about a third of the way around a curve which lies to the east of Ponema Station and the crossing of the Amherst road, the motorcar was in collision with the locomotive of the work train which was proceeding from Nashua to Milford. One of the men on lookout forward saw the locomotive just in season to shout a warning and jump to safety, as did the other members of the crew. The deceased applied the brakes of the motorcar, bringing it to a stop just before the impact, but did not jump in time to avoid the collision.

The accident occurred in the daytime when the weather was clear. At all points on the curve there was a clear view in either direction of at least 800 feet, in which space both the locomotive and the motorcar could have been stopped,

The curve being to the left as the locomotive approached the scene of the accident, the engineer's view of the track ahead was obstructed by the boiler of the locomotive, so that he did not see the motorcar in time to stop the train. The fireman, from his post on the left side of the cab, could have seen the full distance of 800 feet ahead had he been on watch, but, from the time the train crossed the Amherst road, about 1,065 feet east of the point of collision, he was engaged in his duty of putting coal upon the fire.

The failure of the deceased to see the locomotive in time to have stopped the motorcar and jumped to safety can be explained only by his and his crew's failure to keep a proper lookout.

At the close of the plaintiff's evidence, the defendant moved for a nonsuit on both counts, which was granted subject to exception.

Laurence I. Duncan and Robert W. Upton, both of Concord, for plaintiff.

Warren, Wilson, McLaughlin & Bingham, of Manchester (Robt. P. Bingham, of Manchester, orally), for defendant.

WOODBURY, Justice.

I. The defendant operates a connecting railroad system extending into several states, and the Keene branch of this system upon which the accident occurred is in daily use for the passage of cars between Keene, N. H., and Boston, Mass. The deceased at the time of his death was engaged in the work of maintaining the road bed of this Keene branch. It is now well established that an employee engaged in the work of maintaining or repairing tracks used in whole or in part for interstate commerce is entitled to the benefits of the Federal Employers' Liability Act. Rockwell v. Hustis, 79 N. H. 57, 104 A. 127; Crugley v. Railroad, 79 N. H. 276, 108 A. 293; McLean v. Railroad, 80 N. H. 252, 116 A. 435; Paradis v. Railroad, 81 N. H. 210, 123 A, 227; Pedersen v. Delaware, L. & W. Railroad Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. It is equally well established that the federal act does not supplement state law, but supersedes it; that, in cases where the federal law applies, the state law does not. Shannon v. Railroad, 77 N. H. 349, 92 A. 167; Hyland v. Hines, 80 N. H. 179, 183, 116 A. 347; Wabash Railroad Co. v. Hayes, 234 U. S. 86, 34 S. Ct. 729, 58 L. Ed. 1226. The court properly ordered a nonsuit on the count based upon state law.

II. The federal act (U. S. Code, tit. 45, c. 2 [45 USCA §§ 51-59]) renders carriers engaged in interstate commerce liable in damages to those of its employees injured or killed while employed by it in such commerce when injury or death results to them "in whole or in part from the negligence of any of the officers, agents, or employees" of the carrier. By its terms the act does not make the carrier an insurer of the safety of its employees, nor does it do away with the defense of the assumption of the risk, except in so far as it abrogates the fellow servant rule. Tondreau v. Railroad, 85 N. H. 235, 157 A. 76.

The plaintiff bases her right to recover on three alleged acts of negligence on the part of fellow servants of the deceased, that is, of the engineer and fireman of the work train. These acts consist of: (1) Failure to keep a lookout; (2) failure to sound a warning as the locomotive entered the curve where the accident happened, and (3) failure to keep the speed of the train under control.

"Negligence is not a thing, but a relation." Boston & Maine Railroad v. Sargent, 72 N. H. 455, 463, 57 A. 688, 691. "Legal negligence is the failure to perform a duty the law imposes upon one person for the benefit of another. Consequently, when there is no duty there can be no negligence." Davis v. Railroad, 70 N. H. 519, 49 A. 108. See, also, Hughes v. Railroad, 71 N. H. 279, 284, 51 A. 1070, 93 Am. St. Rep. 518; Garland v. Railroad, 76 N. H. 556, 86 A. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 924; Brody v. Gilbert, 82 N. H. 158, 131 A. 142. The nature and extent of the duty which the defendant, acting through its engineer and fireman, owed to the deceased, must be determined by reference to federal legislation and the opinions of the federal courts. Southern Railroad Co. v. Gray, 241 U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030; Tondreau v. Railroad, supra.

In Chesapeake & Ohio Railway Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914, the deceased, an experienced section foreman, was struck from behind and killed by a locomotive. The...