Bowers v. Connecticut River Railroad, 162 Mass. 312

Bowers v. Connecticut River Railroad

162 Mass. 312 | Mass. | 1894

Allen, J.

Under the first count, which was at common law, the plaintiff had no case for the jury. The common law duty of the defendant was that of inspection, and there was no sufficient evidence that it had failed to make proper provision for the inspection of the cars. The neglect, if any, was that of a fellow servant. Mackin v. Boston & Albany Railroad, 135 Mass. 201. Keith v. New Haven & Northampton Co. 140 Mass. 175. Coffee v. New York, New Haven, & Hartford Railroad, 155 Mass. 21.

The second count was under St. 1887, c. 270, and alleged, in substance, that the two cars were defective in not having suitably constructed and adjusted drawbars and drawbar pockets or sockets, whereby the head of one drawbar slipped out of place and by the other drawbar, and thereby caused the injury; and that the defects had not been discovered or remedied owing to the negligence of the defendant, or of some person or persons in its employ, intrusted with the duty of seeing that the cars were in proper condition.

The first question under this count is whether the cars were a part of the ways, works, and machinery used in the business of the defendant, within the meaning of the statute. They were ■ loaded freight cars, which had come from other railroads, and which were to be hauled over a part of the defendant’s railroad for the transportation of the freight contained therein, in the due course of the defendant’s business. For the time being they were used in the defendant’s business as a part of its rolling stock. The fact that the defendant did not own them is immaterial. The defendant was not bound to use them in its train if on inspection they were found to be unsafe. We think cars so used must be deemed to be a part of the defendant’s works and machinery. Coffee v. New York, New Haven, & Hartford Railroad, 155 Mass. 21. Gottlieb v. New York, Lake Erie, & Western Railroad, 100 N. Y. 462. Fay v. Minneapolis & St. Louis Railway, 30 Minn. 231.

This is now so established by St. 1893, c. 359, passed since the plaintiff’s cause of action arose.

*318We have then to consider whether there was any evidence for the jury of a defect in either car, which had not been discovered or remedied owing to the negligence of any person in the service of the defendant intrusted with the duty of seeing that the cars were in proper condition. It has heretofore been held by us that a drawbar of a locomotive engine, if placed too low, may be a defect. Lawless v. Connecticut River Railroad, 136 Mass. 1. In the present case the alleged defect is that there was an opportunity for too much lateral motion of the drawbars, and especially of the drawbar on the stationary car. The evidence of a defect in this particular certainly strikes us as slight, but too much space for play may be a defect, and we cannot say that it clearly appears, as matter of law, that there was no evidence for the jury.

If it is assumed that there was evidence for the jury of a defect, there was also evidence tending to show that the failure to discover or remedy it was negligence on the part of the defendant’s inspectors of cars.

We cannot say that the plaintiff clearly appears to have brought the accident upon himself by ins own carelessness, or that he must be held to have assumed the risk, or that he was not entitled to go to the jury on these questions.

Upon the second count, therefore, we think the plaintiff is entitled to a new trial.

Upon the third count there was no evidence for the jury, there being no evidence of negligence on the part of any superintendent or person exercising superintendence for the defendant.

Verdict set aside as to second count.