Watkins v. Boston & M. R. R.

• Decision Date: 27 June 1929
• Citation: 146 A. 865
• Parties: WATKINS v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

146 A. 865

WATKINS

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

June 27, 1929.

requests which were in substance that, if there were no lurch in passing over point of accident as to be noticeable to other occupants of engine, verdict should be for defendant, since request singled out selected portions of evidence.

Exceptions from Superior Court, Merrimack County; Burque, Judge.

Action by Arthur J. Watkins against the Boston & Maine Railroad. Verdict for plaintiff, and defendant excepts to the denial of its motions for a nonsuit and a directed verdict and to the denial of certain requests for instructions and to certain portions of the charge. Judgment on the verdict.

Case for negligence under the Federal Employers' Liability Act (U. S. Code, tit. 45, c. 2 [45 USCA §§ 51-59]) and Boiler Inspection Act (U. S. Code, tit. 45, c. 1, §§ 22-34 [45 USCA §§ 22-34]). Trial by jury and verdict for the plaintiff. The merits of this case have already been considered twice by this court. Watkins v. Hustis, 79 N. H 285, 109 A. 713; Watkins v. Railroad, 83 N. H. 10, 138 A. 315. Various other phases of the same controversy are also reported in 80 N. H. 102, 113 A. 796; 80 N. H. 468, 119 A. 206; and 81 N. H. 363, 127 A. 701.

At the time of his injury the plaintiff was employed by the defendant in interstate commerce as a locomotive fireman. His evidence tended to prove that he was thrown from his engine near a point known as Davis' Crossing between Ayer and Harvard, Mass., by a sudden and violent movement upward and to the right of the apron between the cab and tender upon which he was standing. The defendant excepted to the denial of its motions for a nonsuit and a directed verdict, to the denial of certain requests for instructions, and to certain portions of the charge as more fully appears in the opinion. A bill of exceptions was allowed by Burque, J.

Robert W. Upton and Joseph C. Donovan, both of Concord, for plaintiff.

Demond, Woodworth, Sulloway & Rogers, and Jonathan Piper, all of Concord, for defendant.

BRANCH, J. 1. Defendant's position in regard to the denial of its motions for a nonsuit and for a directed verdict "is briefly that (1) The alleged lateral play in the apron would not and could not make the apron more dangerous to ride on or have any tendency to increase the lateral movement of the apron, and (2) That a sudden lurch to the right as testified to by the plaintiff would throw him to the left rather than the right and that he wasn't and couldn't have been catapulted through the gangway as he said he was,— that his story is inconsistent with and contradicted by the admitted physical facts and by fundamental natural laws with which we are all familiar." Both of these contentions received careful consideration when this case was last before this court (Watkins v. Railroad, 83 N. H. 10, 12, 13, 138 A. 315) and were rejected. No sufficient reason for their further consideration appears. "A question of law once decided is not reconsidered in the same case, except upon a motion for rehearing." Olney v. Railroad, 73 N. H. 85, 91, 59 A. 387, 390 and cases cited.

2. The presiding justice denied defendant's request for an instruction that there was no evidence from which it could be found that "the curve near Davis' Crossing contributed to cause the accident," and submitted to the jury the questions whether the accident happened on the curve, and whether the curve contributed to cause the accident. The defendant's exceptions to these rulings raise a question which was not considered when the case was last here. Watkins v. Railroad, 83 N. H. 10, 13, 138 A. 315.

The defendant concedes that there is now "some evidence that the accident happened on a curve," but bases its contention that this curve could not have contributed to the accident upon two propositions of fact which it says are conclusively established by the evidence, i. e.: (1) That a one-degree curve like that in question, having a radius of more than a mile, is so slight that "it is a curve in name only" and "for all practical purposes is no curve at all," which could not have caused the motion of the apron described by the plaintiff; (2) that the testimony as to the effect of a curve upon a loose apron "is limited in its application to the extremities of a curve, and nobody claims that this accident happened when the engine was either entering or leaving the so-called curve in this case."

An examination of the record shows that neither of these claims was conclusively established by the evidence.

In regard to the possible effect of a one-degree curve, plaintiff introduced testimony of three expert witnesses, two of them locomotive engineers of many years' experience, and a third, a consulting mechanical engineer, all of whom gave it as their opinion that the curve in question would be sufficient to cause an accident such as the plaintiff described. This opinion was corroborated by the experience of a fireman formerly employed by the defendant, who testified that upon one occasion when he was firing a locomotive having a lateral play of one inch in the apron, he was thrown flat and to the right by the motion of the apron so that he "nearly went out of the gangway" when the engine struck a left-hand curve which "isn't a bad curve at all." Upon the foregoing testimony, the question of the adequacy of the curve as a contributing cause for the motion of the apron was clearly for the jury.

The plaintiff does not concede the accuracy of defendant's assertion that the testimony as to the effect of a curve on a loose apron "is limited to the extremities of the curve," but even if this portion of defendant's contention be accepted as sound, its argument must still fail, for the evidence would plainly justify a conclusion that the accident happened when the locomotive was leaving the curve in question. This curve commences at the south side of Davis' Crossing and extends south a distance of 250 feet. The plaintiff was picked up after the accident by a north-bound train, and there was evidence that when it stopped for this purpose its locomotive stood 200 feet south of Davis' Crossing, which would bring it within the last third of the curve. There was also evidence from which it might be found that when this stop was made, Watkins' body lay opposite the baggage car, which was the second car in the train. These cars were approximately 00 feet long. Whether he lay opposite the front end, the center, or the rear end of the baggage car, did not appear; but the foregoing testimony would justify a conclusion that he lay somewhere between 260 and 320 feet from Davis' Crossing, or from 10 to 70 feet beyond the south end of the curve. Making due allowance for the unavoidable inaccuracy of estimates of distance, it might properly be found that the plaintiff was picked up near the south end of the curve and that the accident happened when the engine was leaving it Both of the questions submitted by the court to the jury were proper for the consideration, and defendant's exceptions to the denial of its request must be overruled.

3. In regard to the application of the Boiler Inspection Act, the court charged the jury as follows: "It therefore appears under the statute in its present form that it is unlawful for any railroad to use in moving interstate traffic, and this was interstate traffic in this case, a locomotive, unless such locomotive and tender and all parts and appurtenances thereof are in proper condition and safe to operate in active service without unnecessary peril to life or limb. That was the obligation resting upon the defendant in this case, and that is the obligation which the plaintiff says the defendant failed to perform. This duty to have the locomotive and tender and all parts and appurtenances thereof in safe condition so that they could be used without unnecessary peril to life and limb is an absolute and continuing duty. In this respect, the case differs from the ordinary case of master and servant, for the statute does not say that the railroad shall have their engines as safe as they can by the exercise of reasonable care or that it shall be liable only for defects which might have been discovered by proper inspection, but it lays down a rule of law that the engines must be in proper condition, and if a defect in its condition causes injury to an employee, then the railroad is liable whether it had any knowledge of its existence or not." To this portion of the charge the defendant excepted as follows: "The defendant excepts to the court's construction of the boiler inspection act, meaning the language of the statute as applied to this case, and the statement of the duties of the defendant arising therein. Also to the construction of the words 'proper condition and safe to operate in use' under the statute; and to the charge of the court which allows no modification or leeway in the meaning of 'proper condition and safe to operate.' The defendant also excepts to that portion of the charge in which the jury are told in substance that the railroad has a duty to do more than make the engine reasonably safe to operate and keep it in reasonably proper condition."

The court's statement of the defendant's duty, incorporating as it did the language of the statute, was obviously correct as a legal proposition. The statement that the duty was absolute and continuing was apparently taken from the opinion of the Supreme Court in Baltimore & O. R. Co. v. Groeger, 266 U. S. 521, 527, 45 S. Ct. 169, 69 L. Ed. 419. The criticism now leveled against this portion of the charge is that it was susceptible of misunderstanding and calculated to mislead the jury. Defendant's argument is that: "From this the jury would naturally understand that it was the railroad's duty to maintain its engine and tender and appurtenances in an absolutely safe condition under all circumstances." This argument clearly ignores the force of the words ...