Smith v. Boston & Maine Railroad , 73 N.H. 325 ( 1905 )

The defendants owed the plaintiff the duty of providing him a reasonably suitable road-bed over which to pass in the performance of his duties of shifting cars in the Wilton yard. English v. Amidon, 72 N.H. 301. This does not mean that they were insurers of his safety, or were required to furnish him with a road-bed that was absolutely safe. It is clear that the accident was caused by the open space beneath the track; but to entitle the plaintiff to go to the jury on the ground that the defendants failed to provide a reasonably safe place for him to work, he should have shown that the presence of the open space was due to their default. The fact that it was made by the defendants' servants was not sufficient for that purpose. Had it appeared that the defendants knew of its presence, and in the exercise of ordinary care could have remedied it before the plaintiff undertook to shift cars in the yard, or that it had been there for such a length of time that in the exercise of ordinary care they ought to have known of it and remedied it, then it might be found that the defendants failed to perform their duty in this respect. Hannah v. Railroad, 154 Mass. 529; McCann v. Kennedy, 167 Mass. 23; Filbert v. Canal Co., 121 N.Y. 207; Artis v. Railway, 3 N.Y. App. Div. 1; Haskins v. Railroad, 79 Hun 159; Chicago etc. Ry. v. Kinnare, 190 Ill. 9; Franklin v. Railroad, 37 Minn. 409; Hurst v. Railroad, 163 Mo. 309, 320; Hallenbeck v. Railroad, 141 Mo. 97; Missouri etc. Ry. v. Jones, 75 Tex. 151.

The evidence, however, does not present such a situation. It appears that the open space was of a temporary nature, due to the defendants' section men having taken out an old tie, or having removed the dirt from between the ties preparatory to putting in a new or additional one, and that these servants, at the time of the accident, were then at work in the yard repairing the tracks. This evidence would not warrant the conclusion that the defendants suffered the track to remain in this condition an unreasonable length of time, and that the place was unsafe because of their negligence. The only reasonable conclusion to be drawn from the evidence is that the open space created by the removal of the tie or dirt was an incident of the work of repairing the track — an essential part of the operation of the road; that the danger thus created was temporary and the risk transitory. As respects such a danger, the only duty the defendants owed the plaintiff was to provide rules and regulations for his protection while engaged in the performance of his duties in the yard. 1 Labatt M. S., s. 222; Lake Shore etc. Ry. v. Topliff, 18 Ohio C.C. 709. If the defendants failed to make such provision, there would be evidence of negligence; but the burden of proving the absence of rules as the basis of a charge of negligence was upon the plaintiff, the presumption being that all necessary rules were prescribed. Hill v. Railroad, 72 N.H. 518. There is no evidence in the case that the defendants had not provided suitable rules.

Exception overruled.

All concurred.