Section 2 of the boiler inspection act as amended by 38 U.S. Stat 1192, c. 169, s. 1, required the defendant to furnish a locomotive and tender "in proper condition and safe to operate." The plaintiff contends that the locomotive in question was not in proper condition because of excessive lateral play in the apron connecting the cab and tender, and because of the absence of chains across the open gangways, through which the enginemen entered and left the engine.
The construction of the apron is described at length in the first opinion. 79 N.H. 285, 286. Recovery was there denied because the plaintiff failed to connect the condition of the apron with his injury. It was conceded that the movement of the apron would be insufficient to render it unsafe when the locomotive was running "on a smooth straight track," and the court declared there was nothing in the testimony from which it could be found that the track at the place of the accident was uneven or that the accident happened on curve. At the first trial the plaintiff asserted that he was thrown from the engine, but did not recall any prior shock or jolt. His head was severely injured. He now claims that this injury affected his memory for a time, but that after four years his recollection of what happened became clear. His present testimony is to the effect that "the apron lurched to the right with a snap," and "seemed to lift and throw" him.
The jury were instructed that they might find that he was thrown by the loose apron either (1) from his own testimony, or (2) from the testimony relating to the effect of a curve on the apron if they believed from the evidence that the engine was on a curve at the time. *Page 12
There was abundant proof of excessive play in the apron and increased hazard to the plaintiff by reason thereof. The plaintiff's testimony, if true, fully justified a finding that the accident would not have occurred if the apron had been properly tightened.
But the defendant argues that this testimony is wholly unreliable, and that the curve on which the accident is alleged to have happened was too slight to be other than negligible.
There was testimony that the lateral play "in a normal apron" should not be more than an eighth of an inch; that the apron on which the plaintiff was standing at the time of his injury had a play of an inch and three-quarters, and that this condition had existed for at least a year; that grooves coextensive with this superfluous play had been worn in the angle iron on which the apron rested; that one of the hinges by which the apron was attached to the cab had been a "repair job" and that one of the checknuts had been missing for a long time; that unevenness in the track, whether on a curve or not, might cause an abrupt lateral as well as upward motion of the apron, and that the greater the play in the apron the greater this motion would be.
The accident occurred in December. There was evidence that low joints in the track are frequent in the spring and fall because of the frost, and that they are difficult to detect. If due care in the inspection of the track at this season of the year was not likely to reveal such depressions, then the defendant's duty to keep its locomotive and tender in a reasonably proper condition to minimize the effects of an uneven track was all the more imperative. Its conduct was to be judged in the light of possible danger. Tullgren v. Company, 82 N.H. 268, 276; Hussey v. Railroad,82 N.H. 236, 245.
From the fact that low joints are sometimes sufficiently pronounced to upset a person who is not standing on the apron, it is argued that even if a low joint were a factor in the present case, it would be pure speculation to conclude that the looseness of the apron was also a factor. This argument ignores the fact that the jar accompanying the accident was not severe enough to attract the attention of either the engineer or the pilot. This fact in connection with the plaintiff's testimony made the conclusion inferential rather than conjectural. Castonia v. Railroad, 78 N.H. 348,350; Saad v. Papageorge, 82 N.H. 294, 295.
The plaintiff testified unequivocally that his exit from the engine was due to an unusual lurch of the apron. He fell from the right-hand side of the engine, and because he states that the lurch of the apron *Page 13 was also to the right, it is urged that his account of the accident is "opposed to fundamental and elementary laws of nature" and cannot, therefore, be true.
In answer to this contention it may be said in the first place that the rolling and swaying of the cab and tender, the play in the flanges and journals, and the vertical as well as the lateral motion of the apron were too uncertain to admit of a scientific demonstration that a movement of the apron to the right under such conditions could not have impelled the plaintiff in that direction. 21 A.L.R. 141, 153.
In the second place, the jury were not obliged to accept or reject the plaintiff's testimony in its entirety. It related to objective matters about which he might be mistaken, and was not of the class which bound him irrespective of its truth. Harlow v. Leclair, 82 N.H. 506. How much or how little of the testimony was entitled to credence was a matter for the jury to decide. They could believe the plaintiff's general assertion that a sudden and unwonted lurch of the apron caused the accident without also believing that his narrative was correct in all its details.
That his present testimony supplies the deficiency pointed out in the first opinion was urged in disparagement of his truthfulness at the trial. It is needless to say that the finding of the jury on that question is not reviewable here.
Since there was direct evidence that the plaintiff was thrown by the apron, circumstantial evidence of that fact was not indispensable. Consequently, the plaintiff does not fail because of the absence of evidence of any specific defect in the track. Nor is it necessary to consider the evidence relating to the curve. The verdict was fully justified without reference to this evidence, and the defendant did not move to withdraw the issue from the jury. Williams v. Railroad,82 N.H. 253, 255; Rockwell v. Hustis, 79 N.H. 57, 58.
It is doubtful if the defendant could be deemed negligent for failing to guard the gangways if there were no evidence of excessive play in the apron. Zajac v. Company, 81 N.H. 257, 260. It does not appear that engines were generally equipped with chains (King v. Gardiner, 76 N.H. 442; Warburton v. Company, 75 N.H. 592; Saucier v. Spinning Mills, 72 N.H. 292,295), but the defendant had maintained them at one time on other engines and therefore knew of their use. Speares Sons Co. v. Railroad, 80 N.H. 243,244; Rockwell v. Hustis, 79 N.H. 57, 59. The safe operation of an engine with an insecure apron might well demand special protection, and the jury, under the circumstances, would be warranted in finding *Page 14 that chains were essential for that purpose. Burke v. Railroad,82 N.H. 350, 359; Derosier v. Company, 81 N.H. 451, 466; Reynolds v. Company, 81 N.H. 421, 423; Collins v. Hustis, 79 N.H. 446, 449; Boody v. Company, 77 N.H. 208, 214; Peerless Mfg. Co. v. Railroad, 73 N.H. 328; Wheeler v. Railway, 70 N.H. 607; Warren v. Railway, 70 N.H. 352, 363. The general exception to the submission of the question of the duty to provide chains is accordingly overruled.
But the defendant also excepted to the submission of the question under the boiler inspection act. This statute as originally enacted required the boiler and appurtenances to be "in proper condition and safe to operate in the service to which the same is put, that the same may be employed . . . in moving traffic without unnecessary peril to life or limb." 36 U.S. Stat. 913, c. 103, s. 2. By the amendment of 1915 the provisions of the act were extended to include "the entire locomotive and tender and all parts and appurtenances thereof." 38 U.S. Stat. 1192, c. 169, s. 1. The act is to be applied in connection with the federal employers' liability act. Under the latter, the employer is liable for any negligence on his part which causes injury to an employee, and the employee will not be held guilty of contributory negligence or to have assumed the risk if a violation of section 2 of the boiler inspection act contributed to cause his injury. Baltimore Ohio R. R. Co. v. Groeger, 266 U.S. 521, 528.
In the Groeger case the plaintiff's intestate was killed by the explosion of a boiler. One of the acts of negligence claimed was the failure to have a fusible plug in the crown sheet. The jury were instructed that the defendant was obliged to avail itself of the best mechanical contrivances in known practical use, and if that standard of duty required a fusible safety plug to be installed, then the absence of such a plug would impose upon the defendant an absolute liability. The court held that this instruction was erroneous, but said (p. 531) that the presence or absence of a fusible plug was a matter properly to be taken into consideration with other facts in determining the ultimate question whether the boiler was in the condition required by the act.
In the present case the court did not ask the jury to decide whether an engine in order to conform to the statutory requirements must be equipped with chains, but merely to determine whether the absence of chains on the locomotive in question rendered that particular locomotive dangerous and unsafe. The instruction was unobjectionable. *Page 15
During his cross-examination the plaintiff stated that he had read the opinion of the court on the first transfer of the case. A few questions were asked him regarding his understanding of the opinion, but the opinion itself was neither offered nor received in evidence. Defendant's counsel claimed the right to read the opinion to the jury in the course of his argument. To the refusal of the court to permit him to do so, the defendant excepted. The purpose of reading the opinion was not to state the law applicable to the case (Charrier v. Railroad, 75 N.H. 59, 63), but to attack the credibility of the plaintiff. Counsel was permitted to refer to those portions of the opinion which had been called to the plaintiff's attention in cross-examination, but the opinion was not a documentary exhibit and could not properly be treated as such. Olney v. Railroad,73 N.H. 85.
The defendant moved to strike out certain evidence relating to the former verdict. The court denied this motion when made, but later granted it in effect by directing the jury to disregard the evidence in question. No reason has been suggested why the defendant's exception to the denial of the motion should not be overruled. The questions raised by the other exceptions have been disposed of by the main discussion of the case.
Judgment for the plaintiff.
SNOW and BRANCH, JJ., did not sit: the others concurred.
ON REHEARING. After the foregoing opinion was filed, the defendant moved for a rehearing upon its exceptions to the submission to the jury of the issue of fault in not guarding the gangways of the locomotive. Argument upon the motion was invited.