Lord v. Boston & Maine Railroad

65 A. 111, 74 N.H. 39, 1906 N.H. LEXIS 58

• Court: Supreme Court of New Hampshire
• Decided: October 2, 1906
• Status: Published

Opinions

Young, J.

The plaintiff: claims that the defendants were in lault because they failed to notify the deceased of the dangers incident to the service by reason of the method they employed in setting off cars on side tracks like that leading to the gravel pifc Conceding that the danger incident to moving, cars in this way is a matter in respect to which it is the master’s duty to notify his servants, the plaintiff cannot be heard to complain of the defendants’ failure to do so unless there is evidence from which it cam be found that they ought to have anticipated the decedent would be where he was at the time he was killed.; for the duty of notifying servants of the transitory dangers of their employment is imposed on the master for the benefit of those servants only whom he ought tb anticipate will be injured if he fails to notify them. McGrill v. Company, 70 N. H. 125; Batchelder v. Railroad, 72 N. H. 528. In order, therefore, to determine whether the plaintiff can be heard to complain that the defendants were in fault because of their failure to notify the deceased of the danger which was the cause of his death, it is necessary to inquire whether they ought to have anticipated that he would step onto this track before the cars had passed him.

Since a person is bound to anticipate all that the ordinary man would anticipate in his situation, the test to determine whether the defendants ought to have anticipated the deceased’s action is to inquire whether an ordinary man, who knew all the defendants either knew of the situation and its dangers or would have known if they had used ordinary care for their servant’s safety, would have anticipated that Lebrecque was likely to step upon the track, before the cars passed him. If this were a suit against the train crew, it would be necessary to determine whether they should have anticipated Lebrecque’s action in order to determine whether or not they were in fault for not anticipating it. It is clear that, the test to determine that question would be the same as that to. determine whether the defendants were in fault; for the evidence shows that the train crew knew all that could be known of the situation and its dangers.

It could be found that the train crew were negligent if there was a time, however short, when they could, and the deceased could not, have prevented the accident by the use of ordinary care. There is no view of the case in which it can be found that the defendants were and the train crew were not in fault, if it could not be found that the train crew were bound to anticipate the action of the deceased. Consequently the plaintiff will not be prejudiced if this case is considered as though the train crew were the defendants. The test to determine whether or not the train crew were in fault would be to inquire (1) whether they ought to have anticipated that the deceased would, do what he did at the time of the accident; and if not, (2) whether there was anything they could have done to prevent an accident after they knew of his danger.

1. If tbe deceased bad been walking directly toward tbe sidetrack without apparently noticing the cars, instead of beside and at a safe distance from it, it could not be found that the train crew ought to have anticipated that he would step in front of the cars-they were dropping in on this track. Gahagan v. Railroad, 70 N. H. 441; Waldron v. Railroad, 71 N. H. 362. If it could not be found they ought to have anticipated that he would step onto-the track under such circumstances, it is obvious that it cannot be-found they were in fault for not anticipating that he would turn suddenly toward the track and step in front of the approaching-cars, for there was no apparent reason why he should do so. There was no evidence from which it could be found that it was-better walking between the rails than on the shoulder of the-embankment, that there was anything on the other side of the track which was liable to attract his attention, or that the train-crew could have thought he was going anywhere but to the gravel pit. They knew there was no reason, if he was going there, why he should step between the rails until he got to the bars, and that the cars would pass him before he got half-way there. Neither was there any evidence of anything in his appearance which ought-to have led them to think he was so engrossed in his own affairs-that he might turn from a place where he knew he was safe to a place where he must have known he might be in danger, without looking to see whether or not he could do so in safety; for whether’ or not he knew how flying switches were made, he knew those-tracks were in use on that day, and must have known that the cars were dropped in on them in some way, because it was obvious-that only one end of the side track was connected with the main line. There was therefore no evidence from which it could be found that the defendants ought to have anticipated that the-deceased would do what he did at the time he was injured.

2. Neither was there any evidence that the train crew could have done anything after they knew of the deceased’s danger which they did not do to avoid an accident. Consequently there-is no view of the case in which it could be found the defendants, were in fault.

Plaintiff’s exception overruled..

All concurred. Taggart, Tuttle, Burroughs Wyman and Andrews Andrews, .for the motion. Branch Branch and William M. Sawyer, opposed.