Roberts v. Boston & Maine Railroad , 83 Me. 298 ( 1891 )

Haskell, J.

The plaintiff claims damages for bodily injury received, by reason of a defective draw-liar, in uncoupling a freight box-car from the tender of a locomotive, while the former was being pushed upon a siding, whereby he ivas caught and jammed between the two.

The plaintiff says that, having descended over the front end of the car next to the tender, while they were at a stand-still, he tried to pull the coupling-pin, but that it would not come out on account of a crook in it; that he turned it so that the crook was lengthwise of the hole in the draw-bar, and then pulled it out and laid it upon the deadwood ; and that, meantime, the engine and car had begun to move towards the siding, and were in motion when he pulled the pin; that he then attempted to ascend the ladder on the end of the car and was caught and jammed against it by the tender; that while hanging to the ladder, after his limb had been crushed, he saw that the deadwood had been eaten out on the lower edge by chafing from the head of the pin, and that the draw-bar had shoved under the car, so that the pin-hole was out of sight.

The fireman, who was discharged from the company’s service before the trial, says that, after the accident, he saw the car and the deadwood had been " champered out,” -where the pin had gone underneath it.

On the other hand, it is conclusively shown that the lower front edge of the deadwood was protected by an iron plate three fourths of an inch thick and two inches wide, bolted on, that would naturally make the chafing testified to by the plaintiff and fireman impossible.

Moreover, the conductor and a car-inspector of seventeen years experience both testify that they examined the car after the accident and on the same day of it, and that the deadwood and draw-liar were were sound and perfect, and that the couping gear was in no way defective or out of repair. This same inspector and another of seven years experience and the foreman of defendant’s car department, within ten days after the accident, all testify that they examined the car and found the coupling gear sound and in good order.

The car was being shoved backward, up a slight incline, when the plaintiff pulled the pin, and it is hard to see how he could have done so, if, as he says, the draw-bar had been defective as indicated by an eaten condition of the deadwood, so that pressure would shove the head of the pin two or three inches under the deadwood, for there is no evidence to show that greater ¡pressure was put upon the draw-bar after the car began to move than at the inception of its momentum, and such is not the natural result of moving a single car on a nearly level track.

Mr. Meritt, defendant’s superintendent of many years standing, and a man well-known, testifies that, after the accident, the plaintiff called at his office in Boston and told him that, when he "reached down to pull the pin, he lost his balance and fell over between the draw-bars.”

The conductor testifies that, on the same day of the accident, he asked the plaintiff "how he got in there,” and he replied that "he didn’t know.”

The plaintiff does not pretend to have observed the eaten condition of the deadwood, while drawing the pin, indicating a defective draw-bar; and it is very improbable that, after he had been so severely injured and while he was hanging to the ladder for his life to prevent falling under the moving train, he should have observed the condition of the draw-bar to determine whether it was defective or not.

Considering, then, the overwhelming weight of evidence in favor of a sound car, and the improbability of the plaintiff’s account of the manner of his injury, together with the testimony of two witnesses as to the plaintiff’s own account, of how it occurred, before he had become stimulated with the zeal of a lawsuit, showing that he either received his injury in an entirely different way from that now claimed, or that he did not know exactly how he did receive it, which is quite probable, it seems as if the jury must have been influenced by some improper motive in rendering a verdict for the plaintiff; it is, therefore, considered that a new trial should be ordered.

Motion sustained.

Peters, C. J., Walton, Virgin, Libbey and Wiiitehouse, JJ., concurred.