Wilson v. New York, N. H. & H. R. Co.

CourtUnited States State Supreme Court of Rhode Island
Citation69 A. 364,29 R.I. 146
PartiesWILSON v. NEW YORK, N. H. & H. R. CO.
Decision Date20 April 1908

[Copyrighted material omitted.]

Exceptions from Superior Court, Providence County.

Death action by Jennie E. Wilson, administratrix of the estate of Walter Wilson, against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff, and defendant excepts. Certain of the exceptions sustained, and the case remitted for a new trial.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

John W. Hogan, for plaintiff. Lewis A. Waterman and Joseph C. Sweeney, for defendant.

JOHNSON, J. This is an action on the case brought by Jennie E. Wilson, as administratrix of the estate of Walter Wilson, to recover damages under the statute for the death of her intestate through the alleged negligence of the defendant. On October 27, 1902, Walter Wilson was the middle brakeman on one of the defendant's freight trains which left the West Exchange street yard in Providence at 6:55 a. m. for Pascoag. As the train, going at a rate of speed estimated at from 7 to 13 miles an hour, neared the Acorn street crossing, Walter Wilson noticed several children running alongside the train, some hanging onto the brace rods and others hanging onto other parts of the cars. After he and another brakeman had tried to drive them off by shouting and trying to scare them without success, Wilson climbed down the ladder at the front end of the seventh car, the ladder being on the end and not on the side of the car, and, when two or three steps from the bottom, he again threatened them. As they did not desist, he descended to the bottom, put his foot in the stirrup, which is on the outside of the car, turned his face toward the rear of the train, the children being back of the car he was on, waved his hand at them, and leaned outward and downward as if about to alight. While in that position, he came in contact with an old fence post standing beside the track, and was thrown to the ground and sustained injuries which caused his death. The plaintiff's declaration was in three counts, alleging (1) neglect of the defendant to have its roadbed and tracks in safe and proper condition by constructing the same in close proximity to a certain post on Harris avenue near Acorn street; (2) neglect to give the intestate notice or warning of the defective and dangerous condition of the said place and of the danger; (3) negligence in erecting, suffering, and permitting to be maintained near said tracks a post in close proximity to freight cars. At the trial in the superior court the jury returned a verdict for the plaintiff for the sum of $5,000 damages. Thereupon the defendant duly filed a motion for a new trial, alleging as grounds therefor: (1) The verdict is against the law. (2) The verdict is against the evidence and the weight thereof. (3) The verdict is against the Jaw and the evidence and the weight thereof. (4) The damages awarded in said cause were grossly excessive and unjust. (5) The defendant has discovered new and material evidence which it had not discovered at the time of the trial of said cause, and which it could not have discovered at said time by the exercise of reasonable care. The defendant's motion for a new trial was denied, and the case is now before this court on the defendant's bill of exceptions.

We will first consider the exception to the decision of the superior court denying the defendant's motion for a new trial on the ground that the verdict is against the evidence and the weight thereof. As to the location of the post, Goff, the engineer, called by the plaintiff, testified that he measured the distance of the base of the post from the outside edge of the rail, and that it was 3 52/100 feet, or substantially 3 feet 6 inches. Buckland, a witness for the defendant, testified that he measured the distance from the top of the post, measuring horizontally to the outside of the rail, and that it was 3 feet 8 inches. He testified that another wan held the end of the tape on the inside of the end of the post, and he went over until he stood at a point vertically over the outside of the rail, and got his measurement that way. He did not measure the distance between the base of the post and the rail. The height of the post from the ground was about four feet. Measurements of the car made May 31, 1906, showed that the overhang of the car from the outside of the rail to the outside of the sheathing was 22 1/2 inches, and measuring to the outside of the sill step was 23 3/4 inches. The car had no side ladders, but the ladders were on the end. This car was eight feet nine inches wide. The stirrup hung 15 3/4 inches below the car, and was 22 1/2 inches above the top of the rail. The widest car in use in 1902 was nine feet eight inches. According to the testimony, therefore, the car on which Wilson was riding, having an overhang from the outside of the rail to the outer edge of the sill step of 23% inches, would come within 18 1/4 inches of a post 42 inches from the outside edge of the rail, and would come within 20 1/4 inches of a post 44 inches from the rail. The testimony of nearly all the witnesses who were called in relation to the post, both for the plaintiff and for the defendant, was that the post leaned towards the track, some making it a slight leaning, some three or four inches, some six inches, and some a foot or more. If the measurement by Goff, the engineer, of 42 inches from the base of the post to the rail, was correct, the distance between the top of the post and the side of the car would necessarily be reduced below 18 1/4 inches. Byron S. Brown testified that he should judge that this post was 18 or 20 inches from the side of a box car. Benjamin S. Holloway testified that he walked between the post and the car that night or the next, and brushed his shoulders on the post and car as he walked through. His measurement in that position, made in court, was 18 inches. His testimony at a former trial was put in evidence, as follows: "Q. Put you arm as it was at the time you went between the post and the ear. Q. That is about 23 inches. Is that the place where it is? A. Yes; where you got your finger there." It is to be noted that the distance, 23 inches, was stated by counsel, and then a question as to the place followed. Holloway testified that the post was loose in the ground when he examined it.

There was evidence that Wilson worked for the defendant as brakeman February 8, 1902; that he had worked on this train two days in February, ten days in April, and from October 6th until October 27th, the day he was killed.

The plaintiff introduced certain rules of the defendant, viz., rule No. 975: "Allow no person to ride on a freight train without orders from the Superintendent, except employés in discharge of their duties or persons in charge of freight requiring personal care in transit mentioned in every case on manifest." This was the last of a group of regulations entitled "Special Instructions to Freight Conductors." Rule No. 1003, under the title "Rules for Freight Brakemen," reads: "Be familiar with the rules and regulations of the road, especially those pertaining to freight transportation. Assist the conductor in his work, attend carefully to his instructions, and in every way help to secure safety and regularity in the handling of the train and the merchandise transported by it." Rule No. 1067: "While train is in motion, remain at post of duty designated by the conductor, on top of the cars—except when passing through tunnels or under low bridges—and never ride in the caboose, unless by special permission of the conductor, for a short time, during very cold or stormy weather. Always be at post, in position to repeat hand signals, and ready to apply brakes on signal, particularly when approaching stations, junctions, sidings, railroad crossings, drawbridges, and on downgrades, keeping a sharp lookout for train breaking apart." Rule No. 1072: "Observe rules for conductors, and other classes of employés, so far as they relate in any way to the proper discharge of your duties." Rule E: "Persons employed in any service on trains are subject to the rules and special instructions." Rule F: "Employés must render every assistance in their power in carrying out the rules and special instructions." The plaintiff introduced testimony to show that the intestate, with other brakemen, had been given certain instructions by freight conductors in regard to driving children away from trains. Holloway testified that he had been instructed by a number of conductors to put children off the train, and that he had seen quite a number of conductors put them off while the train was in motion. When asked if instructions were ever given by such conductors to the, crew while Wilson and himself were present, he answered: "Yes, sir; he has told us many times to keep them away, and not to allow them to ride on the cars." He testified that he had seen the conductor, Donahue, chase children away from the trains once or twice "at that point," and also at other places, mentioning one place, Stillwater. When asked what they were doing, he answered: "They weren't children. They were grown men somewhere in the neighborhood of 16 or 17 years old." And, when asked what they were doing at the time, his answer was: "Riding on the cars." He testified that he received instructions with reference to these rules in regard to children and people who were around the freight trains from Conductors Donahue, Helmer, McCabe, McLaughlin, Spinney, and Sergeant. In recross-examination by defendant's counsel he testified that he heard Charlie Morton tell Wilson to drive children off and to put them off moving trains; that Donahue told him (Holloway) in Wilson's presence, and he supposed he was telling Wilson at the same time, several times in three or four days, to drive children off moving trains; that it was a regular...

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