I. The defendant operates a connecting railroad system extending into several states and the Keene branch of this system upon which the accident occurred is in daily use for the passage of cars between Keene, N.H. and Boston, Mass. The deceased at the time of his death was engaged in the work of maintaining the road bed of this Keene branch. It is now well established that an employee engaged in the work of maintaining or repairing tracks used *Page 93 in whole or in part for interstate commerce is entitled to the benefits of the federal employers' liability act. Rockwell v. Hustis, 79 N.H. 57; Crugley v. Railway, 79 N.H. 276; McLean v. Railroad, 80 N.H. 252; Paradis v. Railroad, 81 N.H. 210; Pedersen v. Railroad, 229 U.S. 146. It is equally well established that the federal act does not supplement state law, but supersedes it; that in cases where the federal law applies, the state law does not. Shannon v. Railroad, 77 N.H. 349; Hyland v. Hines, 80 N.H. 179,183; Wabash Railroad Co. v. Hayes, 234 U.S. 86. The court properly ordered a nonsuit on the count based upon state law.
II. The federal act (U.S. Code Ann., Tit. 45, c. 2), makes a carrier engaged in interstate commerce liable in damages to those of its employees injured or killed while employed by it in such commerce when injury or death results to them "in whole or in part from the negligence of any of the officers, agents, or employees" of the carrier. By its terms the act does not make the carrier an insurer of the safety of its employees, nor does it do away with the defence of the assumption of the risk, except in so far as it abrogates the fellow-servant rule. Tondreau v. Railroad,85 N.H. 235.
The plaintiff bases her right to recover on three alleged acts of negligence on the part of fellow-servants of the deceased, that is, of the engineer and fireman of the work train. These acts consist of: 1. Failure to keep a lookout; 2. Failure to sound a warning as the locomotive entered the curve where the accident happened, and 3. Failure to keep the speed of the train under control.
"Negligence is not a thing, but a relation." Boston Maine Railroad v. Sargent, 72 N.H. 455, 463. "Legal negligence is the failure to perform a duty the law imposes upon one person for the benefit of another; consequently, when there is no duty there can be no negligence." Davis v. Railroad, 70 N.H. 519, 520. See also Hughes v. Railroad, 71 N.H. 279, 284; Garland v. Railroad, 76 N.H. 556; Brody v. Gilbert, 82 N.H. 158. The nature and extent of the duty which the defendant, acting through its engineer and fireman, owed to the deceased must be determined by reference to federal legislation and the opinions of the federal courts. Southern Railway v. Gray, 241 U.S. 333; Tondreau v. Railroad, supra.
In Chesapeake Ohio Railway Co. v. Nixon, 271 U.S. 218, the deceased, an experienced section foreman, was struck from behind and killed by a locomotive. The accident occurred during daylight, while the deceased was operating a foot propelled tricycle over the appellant's rails. "For reasons that the jury found insufficient *Page 94 to excuse the omission the engineer and fireman of the train were not on the lookout." Under the above circumstances the deceased was held to have assumed the risk, to have understood that he must rely upon his own watchfulness and keep out of the way, and that "the railroad company was entitled to expect that self-protection from its employees." A judgment for the appellee in the supreme court of appeals of Virginia was reversed by the United States supreme court.
Seven years later in the case of Rocco v. Railroad, 288 U.S. 275, the supreme court of the United States was again called upon to consider the same question but the circumstances of the later case were quite different from those of the former. In the Rocco case the deceased set out upon an inspection trip over his section without first inquiring about train movements as his instructions required. He was killed in a head-on collision with an electric locomotive on a curve where the view was obstructed. It was storming at the time and there had been frequent washouts on the line. He was making a regular inspection and the train with which he collided was three hours late. The motorman of the locomotive knew that the deceased was likely to be on or near the curve at the time of the accident and that it was a blind curve, yet he entered it without having the speed of his train under control and without giving warning of his approach, although it was customary to sound a warning when nearing the curve. The court, after reciting the foregoing facts, used the following language: "We think these facts required that the jury should determine whether the motorman exercised reasonable care to have his train under control, to sound a warning before entering the curve, and to be on the lookout for workmen whose presence might be expected on the day in question, when the waters of the lake were washing over the tracks at this point and inspection and repair might be required. Under the authorities cited the decedent assumed the risks ordinarily incident to his employment as a track inspector, but in the circumstances shown we do not think they included a failure on the part of the motorman to keep a lookout and to give warning in places where the view of one who might be expected to be on the track or approaching in the opposite direction was shut off and the probability of accident was therefore much greater than where the track is straight and the view unobstructed. The issues of negligence of the motorman and contributory negligence of the decedent were for the jury." It was also held that the decedent's failure to inform himself of train movements, although a concurrent cause, was not "in any proper sense" the primary cause of the accident. *Page 95
The plaintiff in the case at bar argues that in the Rocco case the court in effect overruled its former opinion in the Nixon case. This argument is invalid. The circumstances of the two cases are substantially different. The duty on the part of the engine crew to use care for the protection of sectionmen is predicated in the Rocco case upon the fact that the motorman should have anticipated the sectionman's presence in a place where he could not take precautions for his own safety. In the Nixon case no duty of care rested upon the engine crew because they did not in fact know of the sectionman's presence nor should they have anticipated his presence at or near the place where the accident occurred; and furthermore the accident occurred at a place on the track where the sectionman could have seen the locomotive and avoided it, as his duty required, and upon such saving action on his part the engine crew were entitled to rely. Broadly stated, it is the track worker's duty to avoid approaching trains, extras as well as those on a scheduled run, and there is no duty on the part of members of an engine crew to use care for their safety. But a duty of care does arise when the engine crew actually knows of the presence of sectionmen and also that they are either unaware of or unable to escape from a dangerous position. The duty of care also arises when the engine crew has reason to anticipate track workers in a place where the surrounding circumstances are such that they are unable to take precautions for their own safety. Such is the rule which obtains generally in the state courts. Davis v. Railway, 276 Fed. Rep. 187; Hamilton v. Railroad, 211 Iowa 924; Voorhees v. Railroad,325 Mo. 835; Louisville c. Railroad v. Parker, 223 Ala. 626; Kalashian v. Hines, 171 Wis. 429; Smith v. Railroad, 227 App. Div. 269.
There is nothing in the instant case to bring it within the rule of the Rocco case. The accident did not occur on a "blind curve," but at a place where the deceased could have seen the oncoming locomotive in ample time to escape injury, nor is there anything to indicate that the engine crew did or ought to have seen or anticipated the decedent's presence on the curve. Under these circumstances the engine crew owed no duty of care toward the deceased and consequently cannot be found negligent for failure to take precautions for his safety. The case at bar is in all material respects similar to the case of Bernola v. Railroad, 68 Fed. Rep. (2d) 172, in which case the circuit court of appeals for the third circuit, after carefully drawing the line of distinction between the Rocco and Nixon cases, sustained a directed verdict for the defendant. *Page 96
The court was not in error in granting the defendant's motion for a nonsuit on the count under federal law.
Judgment for the defendant.
All concurred.
ON MOTION FOR REHEARING. After the foregoing opinion was filed, the plaintiff moved for a rehearing.