Lockwood v. Express , 76 N.H. 530 ( 1913 )

It is unnecessary to again recount the evidence on the question of liability. A sufficiently adequate account of it is given in the statement of the case. From it, the jury were warranted in finding that the plaintiff was in the exercise of due care at the time he received his injury; that the accident was caused by the negligence of Perkins while he was in the control and management of the defendants' express truck — that he either negligently left it unchained on the station platform where the jar of approaching trains caused it to run back upon the track, or negligently backed it upon the track in front of the freight train just as it was passing; and that he was the agent of the defendants in the actual conduct of their business at the time of the accident, and for whose negligence they are responsible, unless the contract of May 1, 1907, made the Boston Maine Railroad an independent contractor as to the work which Perkins did in handling express matter at the Claremont Junction station.

It appears that in May, 1907, the railroad entered into a written contract with the defendants, wherein it leased to them the exclusive right to carry on the express business on its passenger trains over all lines which were then or might be thereafter owned, leased, or operated by it, and assumed certain obligations for carrying the contract into effect. And we are of the opinion, that if the contract can be said to require the railroad to assume full control and direction of the business of loading, unloading, and caring for the defendants' express matter at stations such as Claremont Junction, that Perkins, who was a railroad employee, could not be found to be an agent of the defendants from the fact that he handled express matter at that station with the defendants' knowledge and approval. The question is therefore presented whether the written contract is open to such a construction.

In it the railroad leases to the defendants (1) "the exclusive right and privilege . . . to control, conduct, and transact all the express transportation business . . . over and upon the passenger trains of said railroad" then or thereafter controlled and operated by it. To enable the defendants to control, conduct, and transact this business, the railroad agreed (2) to furnish at its own expense, for the use and benefit of the defendants, "sufficient space . . . in the baggage cars, or other cars especially set apart for the exclusive use of the Express Company, to accommodate the business of the Express Company and to haul same with speed, . . . and to allow the Express Company reasonable time in which to load and unload such goods and valuables as it may have to load and unload into or from cars on the various trains of the . . . railroad at each of the stations at which the trains are scheduled to stop," and to "warm and light such cars"; (3) to furnish the Express Company "all requisite, reasonable, and necessary facilities, conveniences, and rooms in or connected with its stations and depots, for the care and handling of its express matter, and the loading and unloading thereof, into and from the cars, with a view to the prompt dispatch of its business"; (4) that the "Express Company may from time to time employ station agents and baggagemen of the . . . railroad to act as agents and express messengers of the . . . Express Company, by and with the consent and approval of the proper official of the railroad; and the Express Company agrees that it shall . . . be solely and entirely responsible for all the acts of such agents and baggagemen by them done or committed in the scope of their employment as such express agents or express messengers, compensation for any such service be paid to the agents or baggagemen direct."

These are the only provisions of the contract that are material in considering the question raised. Their meaning as applied to the situation here under consideration is not doubtful or obscure. It is apparent, when they are read in the light of the surrounding circumstances, that the railroad did not undertake to transact the whole or any part of the defendants' express business either on passenger trains or at stations, but leased, so far as it legally had the power, the exclusive right to control, conduct, and transact such a business to the defendants. In subdivision 2 of the contract, the railroad expressly agrees that the defendants shall have adequate time in which to load and unload their express matter into and from cars at stations. If it was understood that the railroad and not the Express Company was to do this work, there was no occasion for the insertion of this provision. The only reasonable conclusion to be drawn from it is that the defendants themselves were to do the work, and the railroad was to allow them adequate time in which to do it. In subdivision 3, the "facilities, conveniences, and rooms" which the railroad were to furnish the defendants were such as were "requisite, reasonable, and necessary" to enable them to care for, handle, load, and unload their express matter. For these accommodations no additional compensation was to be paid; but for "special accommodations" in the way of "rooms set apart for the exclusive use of the Express Company," and for heating and lighting the same, an additional charge was provided for.

It would be wholly unreasonable to suppose that by these stipulations the railroad became an independent contractor vested with full control of the business of handling, caring for, loading, and unloading express matter at stations. If standing alone, and without reference to any other provisions of the contract, these stipulations could be said to contemplate the furnishing of men to the defendants whom they could control and direct in this work at stations, it is evident that they are not here capable of even such a construction; for in subdivision 4 of the contract the railroad employees whom the defendants may employ are limited to station agents and baggagemen on trains, and they can employ them only after obtaining the approval of the proper official of the railroad and upon the agreement that they shall be solely responsible for all acts of such employees done by them within the scope of their employment as express agents or express messengers. Indeed, there is no evidence in the case from which it could be found that the railroad had entered into a contract with the defendants whereby they assumed the duty of controlling, managing, and directing the business of handling and caring for express matter at Claremont Junction. Perkins was either the defendants' agent mere intruder. The evidence tended to show the former.

The contention is also made that on the evidence the conclusion of the jury — that the negligent conduct of Perkins was the cause of the accident — is mere conjecture, it having appeared that the station platform was a public place where people might come to meet and take trains. But when it is recalled that Perkins was present upon the platform in the control and management of the defendants' truck at the time of the accident, and that the evidence does not disclose that any one else was there except Canty, the baggageman, it is reasonably certain that the plaintiff has made it appear more probable than otherwise that the cause of the accident was as he contends. The plaintiff was not bound to exclude all other possible causes. He fulfilled the legal requirement when he made it appear more probable than otherwise that the fact was as he claimed it. Boucher v. Larochelle, 74 N.H. 433, 434.

For the reasons above given, the denial of the defendants' motions for a nonsuit and a verdict, the refusal of their 19th and 20th requests for instructions, and the overruling of their exception to the charge were not error.

As to the 6th, 7th and 9th requests for instructions, it is sufficient to say that they amount to nothing more than a request for a charge that on the evidence the jury as reasonable men could not find that the plaintiff was in the exercise of due care — a question already passed upon.

The 13th, 15th, and 18th requests were misleading and would have confused rather than aided the jury in their deliberations. In the first one the court was asked to tell the jury what was not true, as there was sufficient evidence from which they could find that Perkins was in charge of and had loaded the truck just before the accident occurred. The second of these requests misstated the evidence on which it was based. The third one, so far as it involved the doctrine of agency, was obscure and misleading, and so far as it concerned the independent contractor theory has already been considered.

The 21st and 22d request had no application to the case. The plaintiff was not a servant of the defendants; consequently the defendants' servants were not fellow-servants of the plaintiff.

Exceptions overruled.

All concurred.