Cantin v. Glen Junction Transfer Co.

The case was submitted to the jury under instructions permitting them to find liability under either the federal statutes or the state law. The verdict was a general one for the plaintiff, so that it cannot now be determined upon which ground it was put by the jury. The order of the superior court setting the verdict aside presents the question whether there was sufficient evidence to warrant a finding for the plaintiff under the federal employers' liability act. 35 U.S. Stat. 65.

In order for the plaintiff to prevail under that statute he must show, among other things, that at the time of the accident he was engaged in interstate commerce. If the business of the railroad which employs him is in part interstate and in part intrastate commerce, the statute does not apply when the work he is engaged in at the time of his injury is wholly of the latter class. He must show that he was injured while employed in the former capacity. Illinois etc. R. R. v. Behrens, 233 U.S. 473.

Conceding for the purposes of the argument that there was evidence that the defendant is a common carrier of freight, engaged in interstate commerce, it also appears that a part of its business was not of that character; and there is no evidence from which it could be found that the cars about which the plaintiff was working were being used in such commerce. All that appears is that the cars were being moved upon the defendant's tracks. Whether they were moving to or from points within the state, or those outside the state, is left wholly to conjecture. In this state of the proof no finding could be made upon this essential fact, and the plaintiff's case under the statute fails for this reason. There was no error in the order setting the verdict aside.

The defendant's exception to the denial of a nonsuit presents the further question of the sufficiency of the evidence to sustain verdict under the state law.

It seems to be conceded, as the fact plainly is, that there was sufficient evidence of the defendant's fault. But it is claimed that contributory negligence on the part of the plaintiff was conclusively shown. It is urged that the plaintiff ought not to have placed the discarded knuckle upon the end of the car, and that he should have stood with both feet outside the rail when the cars came together. The only evidence upon these points was the plaintiff's testimony. In describing what was necessary to be done, he said that when a knuckle was removed it was put on the car so as not to lose it, and that if the knuckles did not work right it was sometimes necessary to go in between the cars. No evidence was offered to show that the method of doing the work described by the plaintiff was not the one prescribed by the defendant. It could be found that the plaintiff was doing his work precisely as his employer designed that it should be done. Whether it is negligence for a servant to undertake a dangerous task is said to be a question of fact, and it is apparent that fair-minded men might think that as against the master it was reasonably prudent to undertake the work. Boody v. Company, 77 N.H. 208,214.

As the employment had to do with the operation of cars, the defense of assumption of risk does not apply. Laws 1911, c. 163, as. 1, 2; Nawn v. Railroad, 77 N.H. 299, 305.

Assuming that the defendant's contention that there was no evidence to warrant submitting the case to the jury under the federal safety appliance acts (6 Fed. Stat. Ann. 752; 10 Fed. Stat. Ann. 375) is sound, the plaintiff was entitled to go to the jury under the state law, and the motions for a nonsuit and for a directed verdict were rightly denied.

Exceptions overruled.

All concurred.