Parmaleau v. International Paper Co. , 75 N.H. 69 ( 1908 )

There is nothing in the evidence warranting the inference that the brake was improperly constructed, or that its defective condition had existed for such a length of time that the defendant is chargeable with knowledge that it was out of repair and would not work. If it was the defendant's duty to furnish reasonably safe appliances for controling the movement of the cars, and to repair defects in the brakes discoverable upon reasonable inspection, the evidence is not sufficient to authorize a finding that it did not perform its duty in these respects. St. Pierre v. Foster,74 N.H. 4; Klineintie v. Company, 74 N.H. 276; Smith v. Railroad,73 N.H. 325. In fact, it appears that the defendant's system of dealing with loaded cars received from the railroad company was such that this defect would have been discovered and the danger averted, but for the intervening negligence of the fellow-servant, who removed the trig before the brakeman could mount the car and attempt to control its movement by operating the brake. The case is not one of the concurring negligence of the master and a fellow-servant, but one where the usual course of the master's business was interrupted by the carelessness of the fellow-servant.

But the plaintiff takes the position that if the defendant was not negligent in a legal sense in providing a defective brake, it was negligent in not prescribing definite rules for the conduct of its business, and that its omission in this respect was the proximate cause of the accident. An employer's duty to promulgate rules for the guidance and protection of his servants in respect to the details of the work in hand does not arise in all cases; and it is unnecessary in this case to enter upon a discussion of the question when they are and when they are not required. It is sufficient to hold that when the character of the work is not complicated and intricate and attended with obvious and inherent dangers, or when the general method of doing it, long established and recognized by the employees, does not appear to be unreasonable or unnecessarily dangerous, the employer is under no obligation to provide rules, or to command specifically the observance of a system of work which his men adopt and observe without special instructions. A reasonably safe method of operation, customarily followed, is in effect equivalent to the establishment of reasonable rules, so far as the employer's duty in this respect is concerned.

In this case, the method of operation, which it is conceded was ordinarily adopted, does not appear to be unreasonable. Nor would the evidence authorize a finding that it was unreasonable, considering the work to be accomplished. The custom was, when a car was to be moved down the track, for one man to go to the brake on the top of the car, and when he was ready to notify the man on the ground to knock out the trig. The man at the brake would thus be in control of the car in its course down the track. It was not their custom or the rule adopted by them to start a car in the absence of a brakeman. If it had been, the system would doubtless be deemed defective and dangerous. There was therefore no necessity for a formal rule that a car should not be started until the man at the brake signified that he was in position to control the car. The fact that no such man was at the brake on the car in question was not due to the want of a reasonable rule or system, but to the omission of Clouthier, who removed the trig without knowing whether the brakeman was at his post and without receiving a signal from him that he was ready. A formal rule or regulation issued by the defendant would not have prevented this oversight on the part of Clouthier, any more than the actual system of operation with which he was fully acquainted.

It is said that the defendant should have provided for the giving of some definite signal when a car was about to be liberated. The object of a signal would be, of course, to convey information to the men so that they could protect themselves from being injured by the moving car. But it appears that all the men, including the plaintiff, knew when a car near the switch would start. When the plaintiff, on the morning of the accident, went up to the carrier, he saw the carrier crew start toward the car above, and knew that as soon as they got there they would proceed to put that car in motion down the track directly behind the car he was upon. He would have had no more information if they had actually told him that they were going to start the car. And he also knew that a loaded car, not under proper control of the man at the brake, would come down the track of its own momentum and attain considerable force when it reached a point in the vicinity of the tank. It does not appear how special instructions or rules would have aided him in protecting himself from the known and obvious dangers of his employment. Collins v. Car Co., 68 N.H. 196.

Finally, it is urged that there should have been a rule requiring the giving of a different signal to attract the attention of the engineman from that given to kick out the trig, because it may be that Clouthier, who did not testify, may have mistaken Ellis' signal to the fireman as the brakeman's signal to him to start the car. But the manner of doing this work required Clouthier to take his signal from the man on the top of the car. He knew, or might easily have learned, that no one was in that position, and consequently that no signal to him would be given. It was plainly his duty, before obeying a signal, to ascertain whether it proceeded from one in a position to give it. He knew that a signal when no one was on the top of the car was not intended as an order to him to kick out the trig. We therefore reach the same conclusion as before: that a rule requiring different kinds of signals to him and to the engineman would not have prevented him from starting the car when no one was at the brake. The essential rule was not to start the car until the brakesman was in a position to control it; and this was the rule in accordance with which the men operated.

As the plaintiff's evidence is not sufficient to prove actionable negligence on the part of the defendant, the nonsuit was properly ordered.

Exception overruled: judgment for the defendant.

All concurred.