Opinion
Decided November 3, 1931.
In an action by a servant against his master for injuries, the declaration may be amended to allege that plaintiff's employment was in inter-state commerce, though two years have elapsed from the date of the accident. Under the federal employers' liability act contributory negligence is immaterial on the issue of a nonsuit or directed verdict but only goes in reduction of damages. The claim that a servant riding on a gasoline driven work-car who was injured by the fault of its driver assumed the risk of the negligent driving of the car is unsupportable in the absence of evidence that the driver was habitually negligent or that the servant knew or ought to have known of his negligence in season to leave the car. In an action upon the federal employers' liability act the chance of injury by a fellow-servant's negligence is not assumed. In such action certain evidence justified the submission of the question to the jury whether the driver of the car failed to act prudently in the face of a known danger.
CASE, for negligence. Trial by jury and verdict for the plaintiff.
The original declaration was general; and subject to exception, and over two years after the accident occurred, the plaintiff was allowed to file an amendment alleging that his employment was in inter-state commerce.
The accident happened at Winnisquam crossing on a cold winter morning. The section crew of which the plaintiff was a member were riding on a gasoline driven work car. It was the duty of the foreman to operate the car, and to be on the lookout at crossings. At this time the car was being started up, the foreman was priming the engine and failed to stop the car to avoid the approach over the highway of a truck which collided with the car causing the injuries complained of. Other facts are stated in the opinion.
The defendant's motions for a nonsuit and a directed verdict were denied, subject to exception, by Oakes, J. who transferred the case.
Fortunat E. Normandin and Stanton Owen (Mr. Owen orally), for the plaintiff.
Jewett Jewett (Mr. Stephen S. Jewett orally), for the defendant.
The amendment to the declaration, alleging that the plaintiff was employed in inter-state commerce at the time of the accident, and therefore entitled to recover under the federal employers' liability act, was properly allowed. As the federal court has construed this act (U.S. Code, Tit. 45, c. 2), questions of this character are of federal law, even when the cause is prosecuted in a state court. Crugley v. Railway, 79 N.H. 276, and cases cited. In a case substantially identical with the present action, it was decided that such an amendment was properly allowed, although offered at a time when an original action would have been barred by the two year statute of limitations. New York Central c. Railroad v. Kinney, 260 U.S. 340. See also Grew v. Railroad, 83 N.H. 383.
The claim that the plaintiff was guilty of contributory negligence is immaterial upon the issue of a nonsuit or directed verdict. Under the federal act such fault does not defeat the action, but only goes in reduction of damages. U.S. Code, Tit. 45, c. 2, s. 53; Stowe v. Payne, 80 N.H. 331.
The contention that it conclusively appears that the plaintiff assumed the risk is based upon the assertion that it was the plaintiff's duty to be on the watch for danger as the gasoline work car on which he and others were riding approached a level crossing. But this is merely another way of stating a claim of contributory negligence. The negligence of which the plaintiff complains is that of the foreman. There is no suggestion that the foreman was habitually negligent, or that the plaintiff either knew or ought to have known of such negligence in the present instance in season to quit his post. Crugley v. Railway, 79 N.H. 276.
"As . . . the case is governed by the federal employers' liability act, the fellow-servant doctrine has no application." Ingalls v. Railroad, 83 N.H. 397, 399, and cases cited. The general chance of injury by the negligence of a fellow-servant was not assumed by the plaintiff. It is therefore immaterial whether the foreman should be considered to have been the plaintiff's fellow-servant or a vice principal of the defendant. In either event, the defendant would be liable to the plaintiff, under the act, for the foreman's negligence.
The issue of the defendant's negligence has been argued here on behalf of the plaintiff upon the claim that the view from the track was unnecessarily obstructed by a baggage truck, and that the foreman failed to take reasonable precaution to ascertain if the way was clear. It is unnecessary to consider either claim, for the foreman who was called as a witness by the defendant, testified that he saw the approaching truck when it was a hundred and fifty feet from the crossing, that at that time his car was at the end of the crossing and could have been stopped in three feet, that the defendant's rule required him to give highway traffic the right of way, that before this occasion he had always stopped if he saw an approaching automobile within six or seven hundred feet, and that he did not stop on this occasion because he thought he had time to cross and that the truck would stop to let him go by. It is true that in other parts of his testimony he claimed that he was farther advanced when he saw the truck, and sought to justify his course upon the ground that he thought it too late to stop. This conflict merely raised an issue for the jury. Taking the view most favorable to the plaintiff, this testimony showed that the foreman failed to act prudently in the face of a known danger.
The defendant's motions were rightly denied.
Judgment on the verdict.
All concurred.