Hardy v. Boston & Maine Railroad

*536 Chase, J. Assuming the truth of the evidence (Bullard v. Railroad, 64 N. H. 27, 30), and construing it most favorably for the plaintiff {Lyman v. Railroad, 66 N. H. 200), does it conclusively appear that the injury to the deceased was caused by dangers of which he assumed the risk when he entered the defendants’ service ? Is the evidence so definite and convincing that fair-minded men might not arrive at opposite conclusions in answering this question ? Unless it is, it cannot be said that the jury could not properly find a verdict for the plaintiff) and the denial of the motion for a nonsuit must be sustained. Baine v. Railway, 58 N. H. 611; Lyman v. Railroad, 66 N. H. 200, 204. Among the risks which Hardy assumed by entering into the service, were those incident to the performance of his duties in setting cars from a train upon the spur track, of which he was informed, or which ordinary care would disclose to him. Fifield v. Railroad, 42 N. H. 225; Nash v. Company, 62 N. H. 406; Henderson v. Williams, 66 N. H. 405; Bancroft v. Railroad, 67 N. H. 466. He knew, or by the exercise of such care would have learned, of the following facts affecting the risks of his service at that point: The proximity of the siding to the bridge,— not in feet and inches, but in a general way; the necessity of being upon cars at the bridge when they were moving at a speed of about fifteen miles an hour; the insufficiency of the space between the top of a car and the underside of the bridge to allow him to stand erect; the variation in the space by reason ot the different heights of cars; the necessity of taking this variation into account in adjusting the position of the body so as to pass safely under the bridge; the liability to obstruction of one’s view by the smoke from the locomotive; the location and general character of the bridge guard; the nature of his duties, and the way in which they should be performed. Fair-minded men could not come to different conclusions in respect to these matters; but there were others to be considered. If there had been no bridge guard near the bridge, and the deceased had known or ought to have known of this fact, the whole duty of looking out for his safety in passing the bridge would'have devolved upon him. The introduction of a guard transferred a part of this duty to the defendants. There being a guard, the risk assumed by the deceased was not that of passing under the bridge without any means for reminding him of its proximity, but that of passing under the bridge protected by a guard such as he knew or ought to have known this one was. He had a fight to rely upon the guard to remind him of his approach to danger. Its office was to notify him and other trainmen, by the senses of sight and feeling, that they were about to pass a bridge which would hit them unless they changed their position. The necessity for such a reminder arises from the fact *537 that trainmen are liable to become absorbed by the immediate duty before them and so lose consciousness for the moment of their proximity to danger. To accomplish the object in view, the guard should be some device that will hit some portion of the body when the head is above the plane of the under surface of the bridge, not for the purpose of furnishing a gauge by which to adjust the position of the body, but for the purpose of calling attention to the proximity of danger in and above that plane. The statute provides that the character and location of guards shall be approved by the board of railroad commissioners. P. S., c. 159, s. 26. It did not appear that the commissioners had acted on the subject, at the time of the deceased’s injury. The question of suitableness of the guard, in character and location, was therefore to be determined by the jury. It cannot be said, as a matter of law, that it was suitable. The jury might find that the lower ends of the wires should be as low, at least, as the level of the under surface of the bridge timbers, so that they would give warning whenever any portion of the body was above that level. It is evident that a bridge guard properly constructed and located will not always perforin its office, and does not w'holly remove the risk of injury from overhead obstructions. A man may thoughtlessly go upon a car as he is passing under the guard or between it and the obstruction, however suitable the character and location of the guard may be, and receive no warning from it. The risk of doing this is incident to the service. To avoid it, a duty rests upon the man to use his sense of sight when about to go upon a car, to ascertain whether he has passed the guard. 'Whether Hardy stepped on to the car before or after passing the guard, was a question of fact. The evidence bearing upon it is not so positive and convincing as to remove all doubt. The fireman thinks he had got on the car before passing the guard; but his testimony seems to be an inference drawn from other facts, instead of positive recollection. Some fair-minded men might agree with him, while others might come to the opposite conclusion. If he got upon the car before passing the guard, he was at liberty to rely upon it to warn him by the sense of touch of his approach to danger, unless the guard was unsuitable in location or character for that purpose, and he knew or ought to have known of its unsuitableness. While it may be safely said that he knewr or ought to have knowm of its location in reference to the bridge, the evidence does not conclusively show that he knew or ought to have knowm of the difference in elevation between the ends of the wires and the under surface of the bridge timbers. This fact may not have been — probably was not — ascertainable except by actual measurements or a sighting from one object to another under more *538 favorable circumstances than was possible when the person was upon the top of a freight car in motion attending ito other duties. Upon the evidence, the jury might find that Hardy mounted the car before reaching the bridge guard, and supposing its wires depended as low, at least, as the underside of the bridge timbers, relied upon it to warn him if his head got above that level; that at the moment of passing the guard his head happened to be below the level, and he did not raise it higher before reaching the bridge; and that, receiving no warning, he understood he was below the danger level. It is no answer to say that the jury might find the other way. Fair-minded men upon considering and weighing the evidence might come to different conclusions on this point, but, as has been seen, this does not shift the duty of deciding the question from the jury to the court. These considerations show that the motion for a nonsuit was properly denied. It follows that the defendants’ motion at the close of the evidence, for judgment in their favor, was also properly denied. Exceptions overruled. Parsons, J., did not sit: the others concurred.