Watkins v. Boston & M. R. R.

• Decision Date: 01 March 1927
• Citation: 138 A. 315
• Parties: WATKINS v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

138 A. 315

WATKINS

v. BOSTON & M. R. R.

Supreme Court of New Hampshire, Merrimack.

March 1, 1927.

On Rehearing May 3, 1927.

[Copyrighted material omitted.]

Transferred from Superior Court, Merrimack County; Branch, Judge.

Action by Arthur J. Watkins against the Boston & Maine Railroad. Verdict for plaintiff, and defendant's motions for nonsuit and directed verdict were denied. Case transferred from the trial term, on defendant's exceptions. New trial.

Case for negligence under the federal Employers' Liability Act (35 U. S. Stat. 65, c. 149 [U. S. Comp. St. §§ 8657-8665]) and Boiler Inspection Act (36 U. S. Stat. 913, c. 103 [U. S. Comp. St. §§ 8630-8639]). Trial by jury, and verdict for the plaintiff. The case was originally brought against James H. Hustis, receiver, and is reported in 79 N. H. 285, 109 A. 713. Various phases of the same controversy are also reported in 80 N. H. 102, 113 A. 796; Id., 80 N. H. 468, 119 A. 206, and in 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 while it was in motion, and that this was due to the looseness of the apron between the cab and tender where he was standing when the accident occurred. Other facts are stated in the opinion.

The defendant excepted to the denial of its motions for a nonsuit and directed verdict, to the refusal to grant certain requests for instructions, to the charge, and to certain rulings in relation to the evidence.

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

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

MARBLE, J. Section 2 of the Boiler Inspection Act as amended by 38 U. S. Stat. 1192, c. 169, § 1 (U. S. Comp. St. § 8639a), required the defendant to furnish a locomotive and tender "in proper condition and safe to operate." The plaintiff contends that the locomotive in question was not in proper condition because of excessive lateral play in the apron connecting the cab and tender, and because of the absence of chains across the open gangways, through which the engine-men entered and left the engine.

The construction of the apron is described at length in the first opinion. 79 N. H. 285, 286, 109 A. 713. Recovery was there denied because the plaintiff failed to connect the condition of the apron with his injury. It was conceded that the movement of the apron would be insufficient to render it unsafe when the locomotive was running "on a smooth straight track," and the court declared there was nothing in the testimony from which it could be found that the track at the place of the accident was uneven, or that the accident happened on a curve. At the first trial the plaintiff asserted that he was thrown from the engine, but did not recall any prior shock or jolt. His head was severely injured. He now claims that this injury affected his memory for a time, but that after four years his recollection of what happened became clear. His present testimony is to the effect that "the apron lurched to the right with a snap," and "seemed to lift and throw" him.

The jury were instructed that they might find that he was thrown by the loose apron either (1) from his own testimony, or (2) from the testimony relating to the effect of a curve on the apron if they believed from the evidence that the engine was on a curve at the time.

There was abundant proof of excessive play in the apron, and increased hazard to the plaintiff by reason thereof. The plaintiff's testimony, if true, fully justified a finding that the accident would not have occurred if the apron had been properly tightened.

But the defendant argues that this testimony is wholly unreliable, and that the curve on which the accident is alleged to have happened was too slight to be other than negligible.

There was testimony that the lateral play "in a normal apron" should not be more than an eighth of an inch; that the apron on which the plaintiff was standing at the time of his injury had a play of an inch and three-quarters; and that this condition had existed for at least a year; that grooves coextensive with this superfluous play had been worn in the angle iron on which the apron rested; that one of the hinges by which the apron was attached to the cab had been a "repair job"; and that one of the checknuts had been missing for a long time; that un-evenness in the track, whether on a curve or not, might cause an abrupt lateral as well as upward motion of the apron, and that the greater the play in the apron the greater this motion would be.

The accident occurred in December. There was evidence that low joints in the track are frequent in the spring and fall because of the frost, and that they are difficult to detect. If due care in the inspection of the track at this season of the year was not likely to reveal such depressions, then the defendant's duty to keep its locomotive and tender in a reasonably proper condition to minimize the effects of an uneven track was all the more imperative. Its conduct was to be judged in the light of possible danger. Tullgren v. Company, 82 N. H. 268, 276, 133 A. 4; Hussey v. Railroad, 82 N. H. 236, 245, 133 A. 9.

From the fact that low joints are sometimes sufficiently pronounced to upset a person who is not standing on the apron, it is argued that, even if a low joint were a factor in the present case, it would be pure speculation to conclude that the looseness of the apron was also a factor. This argument ignores the fact that the jar accompanying the accident was not severe enough to attract the attention of either the engineer or the pilot. This fact, in connection with the plaintiffs testimony, made the conclusion inferential rather than conjectural. Castonia v. Railroad, 78 N. H. 348, 350, 100 A. 601; Saad v. Pappageorge, 82 N. H. 294, 295, 133 A. 24.

The plaintiff testified unequivocally that his exit from the engine was due to an unusual lurch of the apron. He fell from the right-hand side of the engine, and, because he states that the lurch of the apron was also to the right, it is urged that his account of the accident is "opposed to fundamental and elementary laws of nature," and cannot, therefore, be true.

In answer to this contention it may be said, in the first place, that the rolling and swaying of the cab and tender, the play in the flanges and journals, and the vertical, as well as the lateral, motion of the apron, were too uncertain to admit of a scientific demonstration that a movement of the apron to the right under such conditions could not have impelled the plaintiff in that direction. 21 A. L. R. 141, 153.

In the second place, the jury were not obliged to accept or reject the plaintiff's testimony in its entirety. It related to objective matters about which he might be mistaken, and was not of the class which bound him irrespective of its truth. Harlow v. Laclair (N. H.) 136 A. 128. How much or how little of the testimony was entitled to credence was a matter for the jury to decide. They could believe the plaintiff's general assertion that a sudden and unwonted lurch of the apron caused the accident without also believing that his narrative was correct in all its details.

That his present testimony supplies the deficiency pointed out in the first opinion was urged in disparagement of his truthfulness at the trial. It is needless to say that the finding of the jury on that question is not reviewable here.

Since there was direct evidence that the plaintiff was thrown by the apron, circumstantial evidence of that fact was not indispensable. Consequently, the plaintiff does not fail because of the absence of evidence of any specific defect in the track. Nor is it necessary to consider the evidence relating to the curve. The verdict was fully justified without reference to this evidence, and the defendant did not move to withdraw the issue from the jury. Williams v. Railroad, 82 N. H. 253, 255, 132 A. 682; Rockwell v. Hustis, 79 N. H. 57, 58, 104 A. 127.

It is doubtful if the defendant could be deemed negligent for failing to guard the gangways if there were no evidence of excessive play in the apron. Zajac v. Company, 81 N. H. 257, 260, 124 A. 792. It does not appear that engines were generally equipped with chains (King v. Gardiner, 76 N. H. 442, 83 A. 806; Warburton v. Company, 75 N. H. 592, 72 A. 826; Saucier v. Spinning Mills, 72 N. H. 292, 295, 56 A. 545), but the defendant had maintained them at one time on other engines, and therefore knew of their use (Speares Sons Co. v. Railroad, 80 N. H. 243, 244, 116 A. 343; RockweU v. Hustis, 79 N. H. 57, 59, 104 A. 127). The safe operation of an engine with an insecure apron might well demand special protection, and the jury, under the circumstances, would be warranted in finding that chains were essential for that purpose. Burke v. Railroad, 82 N. H. 350, 359, 134 A. 574; Derosier v. Company, 81 N. H. 451, 466, 130 A. 145; Reynolds v. Company, 81 N. H. 421, 423, 128 A. 329; Collins v. Hustis, 79 N. H. 446, 449, 111 A. 286; Boody v. Company, 77 N. H. 208, 214, 90 A. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280; Peerless Mfg. Co. v. Railroad, 73 N. H. 328, 61 A. 511; Wheeler v. Railway, 70 N. H. 607, 50 A. 103, 54 L. R. A. 955; Warren v. Railway, 70 N. H. 352, 363, 47 A. 735. The general exception to the submission of the question of the duty to provide chains is accordingly overruled.

But the defendant also excepted to the submission of the question under the Boiler Inspection Act. This statute as originally enacted required the boiler and appurtenances to be "in proper condition and safe to operate in the service to which the same is put, that the same may be employed * ** in moving traffic without unnecessary peril to life or limb." 36 U. S. Stat. 913, c. 103, § 2 (U. S. Comp. St. § 8631). By the amendment of 1915 the provisions of the act...