Hanley v. Grand Trunk Railway Co.

Tn an action against a railroad corporation for personal injuries, the plaintiff is not entitled to recover where there is no evidence of an injury except that resulting from the negligence of the plaintiff’s fellow employé not representing the corporation.

Case, for personal injuries. The declaration alleged an injury to the plaintiff while assisting, as an employé of the defendants, in loading upon a car old rails, one of which fell upon the plaintiff through the negligence of the defendants in suffering a car with a large amount of snow upon it to be used for that purpose. Another count alleged an injury through the incompetency of the defendants’ agents and servants to manage the business of loading the rails, and that the plaintiff was in the exercise of reasonable care. The plaintiff introduced evidence tending to show that he had been employed by the defendants from 1855 to 1874. In 1874 he worked under one Morrill as a section-man, having charge of the track repairs on the section which included the railroad yard at Gorham. December 9, 1874, he was notified by Morrill to go the next morning down the line towards Portland, and assist in loading old rails, to be taken to the rolling-mill: he had sometimes assisted in loading rails before. On the morning of December 10, 1874, before light, in company with Morrill and other section-men, he started upon a train made up for the purpose of collecting old iron, consisting of a brake van and about a dozen platform cars, and went down the line about a mile on to another and different section from the one on which he was employed. The rails were piled by the side of the road a convenient distance from the track for loading. When the train arrived 'at the first pile, it was stopped by Cole, who was foreman of an extra gang on the road, and who had charge of the business of collecting and loading the rails and of the train for that purpose. The men, of whom the plaintiff was one, commenced to load the rails, at Cole’s direction, on to one of the platform cars. On the car was from one and a half to two and a half feet of snow. It was hard, and heaped up in the middle and falling away towards the sides of the car. How the snow came upon the car did not distinctly appear. There was evidence tending to show that the plaintiff, had no special knowledge of the condition of the car on which they began to load the rails, or of the snow upon it, until they began loading, except what was derived from seeing the train, and then he did not know how solid and hard it was. It was no part of the plaintiff’s duty to make up the train, and he had nothing to do with making it up. There were ten men engaged in loading the rails. The evidence tended to show that the top of the car was about four feet above the track, and the ground on which the men stood in loading the rails was somewhat lower. Tire men loaded the rails by taking hold of them and raising them up and heaving them over upon the car. In attempting to load the second or third rail, it did not distinctly appear which, it struck upon the car and slipped back and fell upon the plaintiff, breaking both his legs and seriously injuring him. He was then pat upon the car and carried home. There was no evidence of any incompetency of any of the defendants’ servants, or that the cars on this train were not in proper condition, except the evidence of the snow upon the car on which the plaintiff was assisting to load the rails at the time he was injured. There was evidence that it was usual in loading rails to have men on the cars to assist in placing the rails as they were put on, but there was no one on this car when the accident happened. Cole was standing on the next car giving directions to the men as to the loading. The snow on this car was plain to be seen by the plaintiff when he began to assist in loading, and he testified that he blamed the snow. The car and train and men were all right. He did not know whether it was dangerous attempting to load the rails upon the car with the snow upon it. He did not think of any danger. The evidence also tended to show, that after the accident to the plaintiff the snow was shovelled off before any more rails were put upon it, and that it was nearly time for the regular train, and they were in a hurry to get the pile of rails loaded before the regular train came along, which was expected soon. As to Cole’s duties and authority, the evidence tended to show that he jvas foreman of an extra gang, whose duty it was to work on the line of the road under directions from Murphy, who was road-master of that division of the road, assisting the section men in repairing the worst places and in putting in side-tracks, collecting old iron, and similar work. The train in question was not made up under Cole’s direction, and he did not select the cars composing it. There was no claim or evidence of Cole’s incompetency except in his not causing the snow to be removed from the car before the loading was commenced. The defendants moved for a nonsuit on the ground that there was no evidence upon which the plaintiff was entitled to recover, and that question was reserved.