The plaintiff claims that the defendants were in fault because they failed to notify the deceased of the dangers incident to the service by reason of the method they employed in
setting off cars on side tracks like that leading to the gravel pit. Conceding that the danger incident to moving cars in this way is a matter in respect to which it is the master's duty to notify his servants, the plaintiff cannot be heard to complain of the defendants' failure to do so unless there is evidence from which it can be found that they ought to have anticipated the decedent would be where he was at the time he was killed; for the duty of notifying servants of the transitory dangers of their employment is imposed on the master for the benefit of those servants only whom he ought to anticipate will be injured if he fails to notify them. McGill v. Company, 70 N.H. 125; Batchelder v. Railroad, 72 N.H. 528. In order, therefore, to determine whether the plaintiff can be heard to complain that the defendants were in fault because of their failure to notify the deceased of the danger which was cause of his death, it is necessary to inquire whether they ought to have anticipated that he would step onto this track before the cars had passed him.
Since a person is bound to anticipate all that the ordinary man would anticipate in his situation, the test to determine whether the defendants ought to have anticipated the deceased's action is to inquire whether an ordinary man, who knew all the defendants either knew of the situation and its dangers or would have known if they had used ordinary care for their servant's safety, would have anticipated that Lebrecque was likely to step upon the track before the cars passed him. If this were a suit against the train crew, it would be necessary to determine whether they should have anticipated Lebrecque's action in order to determine whether or not they were in fault for not anticipating it. It is clear that. the test to determine that question would be the same as that to determine whether the defendants were in fault; for the evidence shows that the train crew knew all that could be known of the situation and its dangers.
It could be found that the train crew were negligent if there was a time, however short, when they could, and the deceased could not, have prevented the accident by the use of ordinary care. There is no view of the case in which it can be found that the defendants were and the train crew were not in fault, if it could not be found that the train crew were bound to anticipate the action of the deceased. Consequently the plaintiff will not be prejudiced if this case is considered as though the train crew were the defendants. The test to determine whether or not the train crew were in fault would be to inquire (1) whether they ought to have anticipated that the deceased would do what he did at the time of the accident; and if not, (2) whether there was anything they could have done to prevent an accident after they knew of his danger.
1. If the deceased had been walking directly toward the side, track without apparently noticing the cars, instead of beside and at a safe distance from it, it could not be found that the train crew ought to have anticipated that he would step in front of the cars they were dropping in on this track. Gahagan v. Railroad, 70 N.H. 441; Waldron v. Railroad,71 N.H. 362. If it could not be found they ought to have anticipated that he would step onto the track under such circumstances, it is obvious that it cannot be found they were in fault for not anticipating that he would turn suddenly toward the track and step in front of the approaching cars, for there was no apparent reason why he should do so. There was no evidence from which it could be found that it was better walking between the rails than on the shoulder of the embankment, that there was anything on the other side of the track which was liable to attract his attention, or that the train crew could have thought he was going anywhere but to the gravel pit. They knew there was no reason, if he was going there, why he should step between the rails until he got to the bars, and that the cars would pass him before he got half-way there. Neither was there any evidence of anything in his appearance which ought to have led them to think he was so engrossed in his own affairs that he might turn from a place where he knew he was safe to a place where he must have known he might be in danger, without looking to see whether or not he could do so in safety; for whether not he knew how flying switches were made, he knew those tracks were in use on that day, and must have known that the cars were dropped in on them in some way, because it was obvious that only one end of the side track was connected with the main line. There was therefore no evidence from which it could be found that the defendants ought to have anticipated that the deceased would do what he did at the time he was injured.
2. Neither was there any evidence that the train crew could have done anything after they knew of the deceased's danger which they did not do to avoid an accident. Consequently there is no view of the case in which it could be found the defendants were in fault.
Plaintiff's exception overruled.
All concurred.
After the filing of the foregoing opinion the plaintiff moved for a rehearing, and both parties were heard upon the motion, by brief and orally.
The principal ground upon which the plaintiff asked for opportunity for further argument was the claim that in the opinion rendered the court had misunderstood the facts of the case. After exhaustive reargument, both oral and written, and careful reexamination of the record, this claim does not appear to be well founded. The immediate cause of the injury to Lebrecque was his act in stepping from the place of safety where he was walking beside the track, almost directly in front of the cars which were then approaching upon the track. It is manifest that if he had looked to see if the track was about to be used for the purpose for which it was designed, he could not have failed to see the danger. On the question of the defendants' fault at the time, considering them to be responsible for the acts of the trainmen if they were in fault, the case is not to be distinguished from Waldron v. Railroad, 71 N.H. 362. Lebrecque was a man with some experience in railroad work and knew that the track was in use for the passage of cars, for the work in which he was engaged was loading cars which had been let down into the gravel pit to be drawn out, so that their contents could be utilized in filling the washout. He had worked at both places during the day. The trainmen were not in fault in not apprehending the possibility that with his knowledge of the use of the track, which they could rightfully assume he had, he would suddenly place himself in the path of the train without taking any precautions to see if it was safe to do so. The ruling of the superior court, denying the motion for a nonsuit upon the ground that there was evidence that the plaintiff was in the exercise of care, is not sustained. The opinion heretofore filed proceeded upon the ground, though it was not thought necessary to formally announce the position, that this ruling was erroneous. If Lebrecque's act was that of a man exercising ordinary care, the trainmen who had the same knowledge of the situation that he had would have been bound to anticipate and guard against it. But they were not bound to foresee that he would act without any care for his safety, and hence were not negligent in failing to anticipate his action. Upon this branch of the case the plaintiff's right of action is concluded by
the rule laid down in Gahagan v. Railroad, 70 N.H. 441. To sustain the plaintiff's action it would be necessary to overrule both these cases. The contention that Lebrecque had reason to understand that the work of the train crew would be suspended during the noon hour is not sustained by the evidence. He had been told that he, one of the shovelers, should have a full hour for dinner from the time work was suspended; but there was no evidence as to the length of time to be taken for that purpose by the train crew, or when they were to take it. That they were at work at this time was self-evident.
The plaintiff places his right of action upon the failure of the defendants to make some rule regulating the making of flying switches. The obligation of the master to make rules to secure the safety of the workmen in the performance of the work is particular of the general rule which requires him to furnish suitable instrumentalities for the work; or, to state the obligation with entire exactness, requires of him personal care to that end. McLaine v. Company, 71 N.H. 294, 296, 297; Hill v. Railroad,72 N.H. 518. It appeared that there was a rule that a flying switch should be made only when absolutely necessary. There may be various reasons why the making of flying switches is not considered sound railroad practice, and hence is required to be avoided if practicable. By this method, as it is understood, a train is separated for a greater or less distance, a portion being carried on by its momentum or the effect of the grade; and between the passage of the different parts a switch is thrown so that the following cars are deflected onto a different track. Whatever other objections there may be to the practice, it is apparent that the only danger to persons on or about the track is the approach without warning of the separated cars. It is manifest that for a train to pass over a highway crossing in two or more parts, without warning that others are coming after the first has passed on, would constitute a serious, menace to travelers about to use the crossing, who might naturally understand, when a portion of the train had crossed, that the danger of immediate collision was over. The danger would arise from the fact that, as trains do not usually occupy the tracks of a railroad in close proximity to each other, prudent men would consider it safe to attempt to cross immediately behind a train. The duty of the railroad in such case to give warning of the approach of other cars would be clear. Failure to give such warning would be strong, if not conclusive, evidence of negligence. The duty imposed on the railroad finding it necessary to conduct operations, of this character is to warn persons liable to be injured thereby. As it is to be inferred from the case that such operations are necessary at times, the negligence consists, not in making flying
switches, but in the failure to give proper warning. It is claimed that the action in this case was not properly a flying switch, but a "kicking" or letting the cars down by gravity upon the side track. If this action is technically better described by some other term, the principle upon which liability could be attached would be nevertheless the same — the lack of a warning.
The question in its final shape therefore is: Was Lebrecque entitled to a notice from his employers of the use which was proposed to be made of the track at this time? If he was, and received none through fault of his fellow-servants, he could not recover unless the master was in fault for not providing that warning should be given. McLaine v. Company,71 N.H. 294. If he was not entitled to a warning, it is immaterial that no provision was made for warning him. He was entitled to care on the master's part to make his work-place safe and to secure his safety in going to and from his work. There is no evidence that this duty was not fully performed. If cars were let down into the pit while Lebrecque and his associates were at work there, there is no evidence that the precautions taken were not sufficient to save them from harm. Lebrecque was not injured in going to or from his work. He had come out of the pit and got into the car to get his dinner. There is nothing to show any reason why his occupation of the track should have been expected apprehended until the close of the noon hour. He was occupying the track for his own purposes; and in the absence of evidence tending to show that his presence ought to have been expected, the defendants are not liable except for failure to avoid injuring him if they could after they knew of his danger. Brown v. Railroad, 73 N.H. 568; Shea v. Railroad, 69 N.H. 361. If it was the duty of the defendants to provide by rule, in the case of the making of a flying switch, for a warning to those whom they had reason to apprehend might be in the path of the moving cars, nevertheless they were under no obligation to give such warning for the benefit of one whose presence they were not bound to anticipate. The plaintiff cannot recover except for the breach of a duty to Lebrecque causing the injury. It is immaterial that the facts may establish the breach of a duty owed by the defendants to others, which if observed would have prevented the injury. Batchelder v. Railroad, 72 N.H. 528.
Motion denied.
All concurred.