Whitcher v. Boston & M. R. Co.

• Decision Date: 16 March 1900
• Citation: 46 A. 740,70 N.H. 242
• Parties: WHITCHER v. BOSTON & M. R. CO.
• Court: New Hampshire Supreme Court

46 A. 740

70 N.H. 242

WHITCHER

v. BOSTON & M. R. CO.

Supreme Court of New Hampshire. Coos.

March 16, 1900.

Exceptions from Coos county.

Action by Edward H. Whitcher against the Boston & Maine Railroad Company for injuries. Prom a judgment in favor of defendants, plaintiff excepts. Reversed.

Case for injuries to the plaintiff, an employs of the defendants, by their alleged negligence in maintaining unsuitable ties in their yard in Lancaster. Trial by jury. The evidence tended to prove that the plaintiff was 37 years old, and had worked at railroading most of the time since he was 17 years old, as a trackman, as a shop hand, and as a brakeman and conductor on freight trains running in and through the Lancaster yard. Prior to October, 1894, there was a switch in that yard, near the water tank. In the fall of 1894 the switch was removed, but four of the long ties, which projected about a foot further beyond the rail than those used away from switches, were left in place. These ties were about 24 feet from the freight platform. The ends of these ties were more or less uneven, and somewhat raised above the surface of the ground, which at that point was level. There was no other hard substance, aside from the ties, on the ground at that point. These ties were 9 feet long, and the end of the longest one extended 29 inches easterly from the outer edge of the easterly rail. A tie 8 feet long projects 17 inches beyond the rail. The train which the plaintiff had charge of was a freight, but carried passengers. When there were passengers for Lancaster, the train ran past the freight station to the passenger station. One of the plaintiff's duties was to report the train in to the operator at the freight station, and leave his waybills there. It was his custom to jump from the moving train as it passed the freight station, and attend to his duties there while the brakeman attended to the passengers. Before its removal he was familiar with the water-tank switch and its surroundings. He knew, in a general way, that it was removed, but did not remember when, nor that he saw the work while in progress. He frequently passed along the track by those ties, alighted from his train at or near the place where they were, and did more or less work around the freight platform and yard nine times a week. This state of affairs continued until November 24, 1896. It stormed that day, and there were about 2 inches of wet, sleety snow on the ground. The train arrived at Lancaster from the north at about dusk, and was going past the freight station at a speed of from 4 to 7 miles an hour. The plaintiff went to the forward platform of the saloon car, to get off on the right-hand side, but, finding there were cars upon the siding, he changed to the left-hand side. Having his waybills in his left hand, he swung himself to the ground, putting his right foot down first. The instant his foot touched the ground it went out from under him, and he fell and was injured. He testified that the forward part of the foot struck the ground first, upon some hard, slippery substance. He could not tell what it was, as he made no examination of the spot at that time. He does not know it was a tie. The fall was due to slipping, not tripping. It was his impression that his foot came down near the line formed by the plane of the outer surface of the car, extended to the ground, but he could not say certainly. He also testified that he did not know of the existence of the long ties at the time of the accident, and did not understand there were any away from switches, and that he usually got off his train on the right-hand side next the station, and did not think he ever got off on the left-hand side before. The plaintiff testilied, subject to the defendants' exception, that since the injury he had made experiments in stepping from the car when at rest, and found that he could step naturally upon a tie that projected 29 inches from the rail; that he did not think there would be any difficulty in doing so if the car was in motion; and that his understanding at the time of the injury was that, in alighting from the car, he would not step upon 8-feet ties, or upon any ties outside of switches. There was evidence that the body of the car projected from 22 1/2 to 24 1/2 inches beyond the outer edge of the rail, and that the hand rail on the side of the car extended 27 inches. The evidence tended to show that the defendants' employes, from observations made shortly after the accident, cut a letter "W" into the rail to mark the place where the plaintiff was injured. Some of the waybills were found near this point. One witness testified that the blood arising from the plaintiff's injury was within a space of 2 or 3 feet in diameter, situated 2 or 3 feet northerly of the long ties. Another witness testified that it was at a point about midway between the rails, and about over the middle of one of the long ties. He could not say whether opposite the point, W, or not. And a third witness tesufied that it was over one of the long ties, but he could not state which, and that it was opposite the point, W. The plaintiff's theory at the trial was that he stepped on the beveled end of the second long tie, counting from the north, and he claimed that the point, W, was over that tie. A verdict was directed for the defendants, and the plaintiff excepted.

James W. Remick and William H. Paine, for plaintiff. Drew, Jordan & Buckley, for defendants.

WALLACE, J.To entitle the plaintiff to have the case submitted to the determination of a jury, it must appear by some substantial evidence (1) that the defendants were negligent; (2) that their negligence caused the injury; (3) that the plaintiff did not know of the defect complained of, and ought not to have known of it and appreciated the danger from it; and (4) that the plaintiff was in the exercise of due care. If he has failed to sustain any one of these propositions by some substantial evidence, or if the evidence on any one of these propositions is such that fair-minded men can arrive at but one conclusion, and that adverse to him, then the verdict was properly directed for the defendants. The negligence complained of was that the defendants maintained on their main line in the Lancaster railroad yard four ties a foot longer than the regulation ones, all slightly above the ground, and extending so far beyond the rail that their ends were directly in the natural line of the feet of the trainmen, who had occasion, in the discharge of their duty, to jump from or walk or run beside freight trains, and that this rendered the place unsafe for them. The long ties were placed there to support certain switch rails, and when these rails were removed the long ties were suffered to remain,...