Wilson v. Railway , 78 N.H. 142 ( 1916 )

If it should be determined that it could be found, as the plaintiff contends, that Philip Wilson was at the time of the injury employed in interstate or foreign commerce within the meaning of the statute (35 U.S. Stat. 65 (c. 149)) such conclusion would not establish error in the order of nonsuit. The statute renders the common carrier by railroad, so engaging, liable for injuries sustained by an employee while employed by such carrier in such commerce "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." But there was no evidence before the jury of any negligence in the defendants or any of their employees other than the plaintiff or of any defect in equipment as a cause of the injury. Its sole cause as the case was presented was the act of the deceased, who in disobedience of the rules attempted to make pair without the protection required by them. There is no evidence the rules were insufficient, or were unknown to or misunderstood by him, or that he relied upon any other employee to put up the warning signals, or understood they had been placed. The evidence is to the contrary, the rule was plain, imperative; the deceased knew and understood it and knew it was not followed. Whether he assumed the risk of working without the proper protection or was guilty of negligence in so doing is immaterial. No negligence in the defendants being shown as a part of the cause of the injury, they are not made liable therefor by the statute.

The statement of the brakeman as to the cause of the accident as the narration of a past occurrence was not admissible as matter of law. Nebonne v. Railroad, 67 N.H. 531. Whether it had such connection with the occurrence as to raise such a presumption of verity that its consideration would have sided the jury is a question of fact as to which no question of law is presented by the exception to the order of exclusion. St. Laurent v. Railway, 77 N.H. 460; Nawn v. Railroad, 77 N.H. 299; Madden v. Railroad,76 N.H. 379; Dorr v. Railway, 76 N.H. 160; Robinson v. Stahl, 74 N.H. 310; Murray v. Railroad, 72 N.H. 32.

Exceptions overruled.

All concurred.