Watkins v. Hustis
Decision Date | 04 November 1919 |
Citation | 109 A. 713 |
Parties | WATKINS v. HUSTIS. |
Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Merrimack County.
Action by Arthur J. Watkins against James H. Hustis, receiver. Verdict for plaintiff, and defendant excepts. On transfer from the Superior Court. Exceptions sustained, and verdict and judgment ordered for defendant.
Case, for negligence under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Trial by jury and verdict for the plaintiff.
The plaintiff, a fireman on a train running from Concord, N. H, to Worcester, Mass., fell or was thrown from the train at a point between Ayer and Harvard, Mass., and claims to recover for the injuries so received. The defendant's motion made at the close of the evidence that a verdict be directed for them was denied subject to exception. The evidence relevant to the exceptions appears in the opinion.
Robert W. Upton and Joseph C. Donovan, both of Concord, for plaintiff.
Streeter, Demond, Woodworth & Sulloway, of Concord (Jonathan Piper, of Concord, orally), for defendant.
The federal legislation under which this suit is brought does not abrogate or qualify the common-law rule that in all actions for negligence the plaintiff has the burden of establishing the defendant's negligence and his resulting injury. Wilson v. Railway, 78 N. H. 142, 97 Atl. 981. Proof of negligence is not sufficient unless the evidence discloses an open and visible connection between the injury aud the negligence charged as a reasonable and probable result therefrom. The plaintiff must recover upon proof, not upon conjecture or surmise. Ingerson v. Railway, 79 N. H. 154, 106 Atl. 488; City Bowling Alleys v. Berlin, 78 N. H. 169, 97 Atl. 976; Reynolds v. Burgess Sulphite Fiber Co., 73 N. H. 126, 59 Atl. 615; Dame v. Laconla Car Co., 71 N. H. 407,52 Atl. 864; Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426; Deschenes v. Railroad, 69 N. H. 285, 46 Atl. 467. The proposition is too well settled in this jurisdiction to permit further elucidation or discussion. Applying this rule to the proof presented, it is clear there was nothing for the jury, and the case should not have been submitted to them.
The plaintiff, a fireman of nearly two years' experience, was employed to fire the engine of a special train from Concord to Worcester, December 20, 1917, and performed that service up to a point between Ayer and Harvard, on the line between Nashua and Worcester. Just before Harvard, the next station beyond Ayer, was reached, the engineer noticed the plaintiff was not in the cab. The train was stopped, and arrangement made with a train proceeding in the opposite direction to look for the missing fireman. He was found lying upon the right-hand side of the track inbound to Worcester, 1373 feet west of Davis crossing, so called. The snow was disturbed for a few feet where he had fallen. At this point the track was straight. Commencing at Davis crossing there was a one degree curve to the left which ended 255 feet from the crossing. No one saw the plaintiff leave the cab. His account is that shortly after leaving Ayer his attention was called to Camp Devens, visible on the right-hand side of the road. He stepped beside the engineer and looked through the cab window. He then fired the engine and stepped back with both feet on the apron connecting the cab and tender, when the next thing he knew he was in the air. He testified he did not fall, but was thrown, but could not recall any shock or jolt prior thereto. Two months after the accident the engine was examined by a witness who discovered a possible lateral movement of 1 3/4 inches in the apron of the engine which he testified must have existed for at least a year. The apron or lapboard is designed to furnish connection between the engine and tender upon which trainmen may...
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Watkins v. Boston & M. R. R.
...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. ......
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...809, 60 L. R. A. 116. Applications of the principle are to be found in Bennett v. Odell Mfg. Co., 76 N. H. 180, 80 A. 642; Watkins v. Hustis, 79 N. H. 285, 109 A. 713; Monteith v. Manchester Rendering Company, 82 N. H. 175, 131 A. 440, 441. In the case last cited it was pointed out that neg......
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