181 Mass. 221 | Mass. | 1902
This is an action of tort by a person who is described in the writ as of New London in the State of Connecticut, against a Connecticut corporation, having a usual place of business in this Commonwealth, for an injury sustained by him in Connecticut. We assume for the purposes of the case that the court has jurisdiction, and that the plaintiff is entitled
The accident occurred in the defendant’s freight yard at New London, at four o’clock in the morning of November 6,1895. In this yard were two main tracks, and east of them were three side tracks, numbered, respectively, five, six and seven. There were also four other side tracks. Tracks six and seven united at a switch and frog, and further along joined five, and then ran into one of the main tracks.
The plaintiff had been in the employ of the defendant for four years. During this time he had worked all around this yard and another one across the river. He was familiar with both yards, and was the most experienced man in the crew to which he belonged, except the conductor. For three years before the accident his work was at night. During the time he was at work in the yard, there had been no change in the position of the tracks, although for the last two years before the injury all of the tracks had been very crowded, and there had been two switching crews at work night and day.
The train on which the plaintiff was the rear man had backed down on track seven, to couple on to one or more cars. The conductor and the plaintiff were on the ground. The signal was given to start ahead. There was a ladder on the end of the last car, and grab handles on the side, and also a step. The conductor got on first. Then the plaintiff swung on to the step, and reached around and took hold of the ladder. While in this position, we assume, although this is not very clear on the evidence, that he was struck by a car which had been left standing on track six, too near the junction of the two tracks.
The first count of the plaintiff’s declaration goes upon the ground that the defendant was negligent in so leaving the car on track six. At the trial the contention was that one Dunn, the yard master who had general charge of the yard, was the person thus guilty of negligence; and to take the case out of the rule of fellow servants, it was contended that in Connecticut a servant who had control and direction over other servants was regarded as a vice principal, for whose negligence the general employer would be responsible. To prove the Connecticut law
The question remains whether there was negligence on the part of Dunn. An examination of the evidence fails to disclose any. There is no evidence in the case to show who put the car that did the injury so near the switch that the plaintiff could not pass in safety, nor how long it had remained there. Nor does it appear that it was not placed there by one who in Connecticut would be regarded as a fellow servant. The plaintiff testified that, while the crowded condition of the yards existed, he never saw any cars the way they were then. So that it was not a customary thing to place cars on a side track so near another track that they would do injury. The plaintiff further testified: “ He had seen Dunn once or twice a week in the different yards,, giving directions about where cars were to be moved. Of course they were moving cars every day, and making a great many moves every day, and there were a great many moves of cars that Dunn did not direct at all. A great deal of the time the switching gang would place cars as the conductor said, or as the men left them. What Mr. Dunn did" was, if he wanted particular cars placed in particular places, he would say so, or if he wanted particular cars, he would say so. Other than these particular instances, the men would go about their work, doing it in the ordinary way they were accustomed to, pulling cars in and pushing them out, making up trains and moving cars about. In such a case as this, for instance, if the last car was cut off and
On this evidence we do not see how any negligence can be imputed to Dunn, and the plaintiff has failed to sustain his proposition that the placing of the car on track six was the direct result of the exercise of authority, and was not the act of a fellow servant.
It is suggested that the case of Dacey v. Old Colony Railroad, 158 Mass. 112, governs this case. In that case it was said that from the testimony it might be inferred by the jury that the car which was left too near the junction of the two tracks, and which did the injury, was left there by some one in authority. In the case before us the evidence leaves it entirely uncertain whether the car was left too near the junction by one who was strictly a fellow servant or by one in authority.
The second count charges the defendant with negligently and carelessly furnishing and providing a freight yard insufficient and inadequate in capacity, in allowing cars to stand too near the junction of intersecting tracks, and in not warning the plaintiff of the danger from such proximity of ears.
Taking up the last two allegations first, there was no evidence that cars were allowed to stand too near the junction of intersecting tracks. The only evidence was that on this particular night a car was found so left. The plaintiff was an experienced man, and did not need to be told that if a car should be left too near the junction of the two tracks, and he should be on the outside of his car, he might be hurt. He knew this as well as any one.
The first allegation of this count remains to be considered. Mr. Waller testified that the law in Connecticut required the company to furnish a safe place for an employee to work; and that in this respect he understood the law to be general in other States. This view of the law finds support in remarks made in some of the cases put in evidence; but we do not understand what is said as laying down any rule of law peculiar to Connecticut. The same rule has been stated here. It would seem, however, that there is nothing in the evidence to warrant the
If, however, we assume that there was some evidence of danger in the permanent condition of the yard, this condition had remained the same during all the time that the plaintiff worked there, and was known to him. If he chose to work there knowing the permanent condition to be dangerous, he assumed the risk. In Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, 482, it is said by Mr. Justice Gray: “ A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad corporation, in any work connected with the making up or moving of trains, assumes the risk of that condition of things.” This is the well settled law in this Commonwealth. Coombs v. Fitchburg Railroad, 156 Mass. 200, and cases cited. Fisk v. Fitchburg Railroad, 158 Mass. 238. Goldthwait v. Haverhill & Groveland Street Railway, 160 Mass. 554. Thain v. Old Colony Railroad, 161 Mass. 353. Goodes v. Boston & Albany Railroad, 162 Mass. 287. Austin v. Boston & Maine Railroad, 164 Mass. 282. Content v. New York, New Haven, & Hartford Railroad, 165 Mass. 267. Vining v. New York & New England Railroad, 167 Mass. 539. Bell v. New York, New Haven, & Hartford Railroad, 168 Mass. 443. Dacey v. New York, New Haven, & Hartford Railroad, 168 Mass. 479. Ryan v. New York, New Haven, & Hartford Railroad, 169 Mass. 267. Whelton v. West End Street Railway, 172 Mass. 555.
We find nothing to the contrary in the Connecticut cases, and in the absence of evidence the common law of that State must be considered the same as ours.
Exceptions overruled.
