Wellington v. Pelletier

• Decision Date: 16 November 1909
• Docket Number: 838.
• Parties: WELLINGTON v. PELLETIER.
• Court: U.S. Court of Appeals — First Circuit

173 F. 908

WELLINGTON v. PELLETIER.

No. 838.

United States Court of Appeals, First Circuit.

November 16, 1909

Olcott O. Partridge and H. Eugene Bolles (Henry M. Channing, on the brief), for plaintiff in error.

William A. Pew, Jr., for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH. District Judge.

PUTNAM Circuit Judge.

This suit was brought by the administratrix of the estate of George Pelletier against Wellington, who was operating a quarry, with a verdict for the plaintiff. Wellington owned a spur track which led from a side track of the Boston & Maine Railroad. This side track and the spur track were on a grade. The side track was used for storing empty cars to be loaded in connection with Wellington's business. These cars were left by the Boston & Maine Railroad near the head of the grade on its own siding; and when Wellington or his employes desired cars they were accustomed to select them as needed and run them down to his spur track. They were ordinarily left near the head of the grade by the railroad corporation with the brakes set, and with a tie across the track blocking the wheels. If the cars were left by the Boston & Maine Railroad on its siding in an unsafe condition with reference to starting down the grade, the fault was with it. So long as the cars remained at that point without any disturbance of the status in which they were left there by the Boston &amp Maine Railroad, Wellington was, of course, not at fault. It is claimed that, in connection with the injury to the deceased, Wellington's employes ran one or more cars down the grade, and left the remaining cars with their brakes set without any blocking of the wheels, and that thereupon the boys playing about the cars, and who were accustomed to play about them, in some way started them, and caused them to run down the grade and kill Pelletier. Pelletier was in the employ of Wellington, and at the time was working between the rails of Wellington's spur track, excavating a trench. He appears to have had no connection with the handling of the cars, at least none at the essential time involved here. There was no evidence that he was looking at the cars, or otherwise watching for a possibility of their running down the grade. The verdict was for the plaintiff, and thereupon Wellington brought this writ of error.

There were a number of minor exceptions taken at the trial, only one of which has been urged upon our attention. This suit being for the negligence of defendant's superintendent, or rather of one who was temporarily acting as superintendent, the statute requires a notice; and it is now urged on us that the notice was not sufficient under the law. The objection to the admission of this notice was only general, which is insufficient to base an exception on under the circumstances of the case, because non constat, if the objection had been specific, it might not have been met by the plaintiff on the spot. Under the federal practice, whoever relies on a general exception must point out that the defects in the evidence admitted could not have been cured by the party offering it, if his attention had been called to those relied on.

Passing by these propositions, the alleged errors are based very largely, if not entirely, on questions of fact which we will deal with quite summarily, because no prejudice can come in any future case from thus dealing with them.

It appears in the record that, when the cars were left by the Boston & Maine Railroad, they were chained to the track. There is no claim that, when any of the cars were taken away as we have described, Wellington's employes replaced the chain with reference to the cars remaining. We pass by this because, under the circumstances, it is clear that the jury could not have been properly instructed to the effect that a mere omission to replace the ties was not a negligent act, as the appellant claims they should have been. This is one of the class of facts within the province of the jury, supported in this case by the almost universal custom to protect railroad cars left near the head of a grade, as these cars were, by something more than merely setting up the brakes.

It is claimed that there was no evidence that the tie was not replaced; but on this point the record stands as follows Three men went up to bring down the cars. One of them came down with the last car, leaving the two to secure those that remained. One of these men...