Sweeney v. Railroad , 87 N.H. 90 ( 1934 )

In support of her motion the plaintiff argues that, "the evidence establishes that the negligence of the members of the section crew assigned to keep a lookout was a cause of the death of the plaintiff's intestate."

The authorities cited in the foregoing opinion establish the general rule that it is the duty of each trackworker to watch out for his own safety and that there is not, ordinarily, any duty on the part of one member of a section crew to warn his fellows of the approach of danger. However, it has been established that a railroad company may be found liable for the negligent failure of one member of a section crew to warn his fellows when the person injured has reasonably intrusted his safety to the watchfulness of others, and, acting in reliance upon someone else's care, has maintained no lookout for himself. Swank v. Railroad, 94 N. J. L. 546 (certiorari denied, 254 U.S. 638); St. Louis-San Francisco Ry Co. v. Fine, 184 Ark. 940, (certiorari denied, 286 U.S. 552). In the case at bar there is nothing to indicate that the deceased relied upon the lookout of others and therefore failed to maintain a lookout for himself.

The record discloses that the two members of the section crew who sat on the forward end of the seats, which run lengthwise of the car, were looking forward watching for defects in the rails and for any traffic which might be on the tracks ahead of them. One member of the crew who sat on the rear of the seat on the right hand side of the car was on watch to the rear. The deceased, as foreman, was operating the car and the only evidence bearing upon the matter indicates that he was looking forward in the direction in which the car was proceeding. The evidence falls far short of establishing that the nature of his duties as operator of the car, or that the construction of the car itself, or the fact that one member of the crew was seated in front of him rendered it impossible for him to see in the direction in which the car was going. Although it might be found that he had intrusted his safety as to traffic approaching from the rear to the watchfulness of the man on lookout in that direction, there is no evidence that he had intrusted his safety to others as to traffic approaching from in front. In fact the evidence is that he was one of those on lookout ahead and that the other members of the crew were, to some extent at least, relying upon his watchfulness in that direction.

Furthermore, it does not appear that failure to give earlier warning of the approach of the locomotive was the cause of the intestate's death. The warning was given in season to allow all the members of the crew to jump to safety, one of whom disengaged the clutch before he jumped. The deceased applied the brakes and remained thereafter on the car until the impact. After applying the brakes nothing remained for him to do on the car in order to save railroad property or for any other purpose. His failure to jump when the others did was the cause of his death. Hamilton v. Railroad,211 Iowa 924.

The second ground advanced. in support of the plaintiff's motion is that "the evidence establishes that defendant's negligence in failing to warn of the work extra was a cause of the death of the plaintiff's intestate."

There is no duty on the part of a railroad company to warn its section employees of the movement of extra trains. Shepard v. Railroad,158 Mass. 174; Jacobson v. Railroad, 66 Fed. Rep. (2d) 688. Here, however, there is evidence that the defendant had adopted the practice or custom of providing its section foreman with the means of obtaining information regarding extra train movements. It is doubtless true that the defendant could be found negligent should it abandon this practice without excuse or without giving warning to those of its employees who acted in reliance thereon, but it does not appear that this practice was departed from on the day of the accident. The "line up" or order of extra train movements was telegraphed as usual to the ticket office of the Nashua union station. As usual that office was busy between six and seven o'clock on the morning of the accident and, under these circumstances, telephone calls might not be answered immediately. It does not appear that if the deceased had persisted in his efforts to reach the office by telephone he would not have succeeded, or that this difficulty in communication was any greater on the morning of the accident than on any other morning. The customary information was available to the deceased in the customary manner on the morning of his death.

Although there is evidence that copies of extra train orders were sometimes left at the Nashua city station or at the tool house where the motor car was kept, it does not appear that this practice was carried out with sufficient regularity to permit the inference that this was a customary method of supplying the deceased with information, or to warrant him, in the absence of orders, in assuming that no extra trains were to be run.

The third ground advanced in favor of the motion relates to the conduct of the engine crew of the work extra. Under this ground the plaintiff claims that the engine crew were negligent in three particulars: "(1) in failing to keep a lookout; (2) in failing to sound a warning as the train passed around the curve on which the accident occurred; and (3) in operating the train at an excessive speed." The case of Chesapeake Ohio Railway Co. v. Nixon, 271 U.S. 218, mentioned in the original opinion disposes of the first claim of negligence.

In support of the second claim of negligence our attention is directed to testimony which indicates that a rule of the railroad required that one long blast of the whistle be sounded as extra trains "rounded the curve," and that the last whistle before the accident was sounded on the locomotive of the work extra as it was on the crossing of the Amherst road, a point 1065 feet from the place where the accident occurred. Although it appears that at no point on the curve was there a clear view of less than 800 feet, it does not appear exactly how long the curve was from one end to the other. However, both the oral testimony of the plaintiff's surveyor and his plan which was introduced in evidence clearly indicate that the curve extended down to, and some distance, at least, beyond the crossing. This evidence places the point where the last whistle was sounded definitely within the arc of the curve and shows that the whistle was sounded as required by the rule.

In support of the third claim of negligence counsel for the plaintiff draw attention to testimony from which it might have been found that the work extra was proceeding at forty miles per hour when a rule of the railroad limited the speed of such trains to twenty-five miles per hour. Breach of this rule is not available to the plaintiff as a ground of complaint. The evidence establishes that the rule did not apply to all extra trains but only to those containing a car upon which a derrick was mounted and that the purpose of the rule was to protect railroad property since at speeds in excess of twenty-five miles per hour the derrick boom was likely to swing and break loose from its fastenings. The purpose of the rule not being to protect sectionmen its breach is not available to the plaintiff as a ground of negligence. Derosier v. Company,81 N.H. 451, 456, 457.

Former result affirmed.

All concurred.