196 Mass. 360 | Mass. | 1907
The plaintiff was a brakeman on one of the defendant’s freight trains, and, while riding on a car in the performance of his duty, he was struck by a pole carrying electric wires, owned by an electric light and power company and standing in the defendant’s freight yard in St. Albans, Vermont. The case comes before us on a report,
The plaintiff had been in the service of the defendant more than three years and a half before the accident, during all of which time the pole had stood in its place near the side of the track, and he had been accustomed to pass it regularly on the train. If there had been no change in its position, its existence would have continued to be one of the risks of the business which he assumed when he made his contract for service, and which, under the law of Massachusetts, would have given him no right to recover for an injury received from it. McLeod v. New York, New Haven, & Hartford Railroad, 191 Mass. 389. Lovejoy v. Boston & Lowell Corp. 125 Mass. 79. Coombs v. Fitchburg Railroad, 156 Mass. 200. Thain v. Old Colony Railroad, 161 Mass. 353. Rooney v. Sewall & Day Cordage Co. 161 Mass. 153. Whether it would have given him such a right under the law of Vermont, which was put in evidence, it is unnecessary to determine.
There was evidence from which the jury might find that the plaintiff was in the exercise of due care. He was the rear end brakeman on the train, whose duty it was, among other things, to watch for signals and to give signals while passing through the yard. There was testimony tending to show that it was proper for him to pass by the cupola which was on the top of the caboose, and to be near the edge of the roof, holding to the railing, in going by it. For years he had passed along this track on the train. He had no reason to think that a guy wire
Judgment on the verdict.
The case was reported by Fox, J., who refused to order a verdict for the defendant, and submitted the case to the jury.
The caboose and the cupola were described by the plaintiff as follows: “ There is a caboose at the rear of these freight trains; on the day when I was hurt there was a caboose on this train; there is a kind of a box-like structure with windows that we have to stand in to watch our trains that sticks above the roof of the caboose; it is called the cupola; it lacks about four inches on each side, or a little more, of being as wide as the caboose; on the top of the roof of the caboose, there is a railing to take hold of in moving back and forth, and grab irons to hang on to; as I stand here, as near as I can judge, the railing would be about as high as this desk; as I took hold of it with my hand I had to stoop over slightly, it is sometimes called grab iron. ... I had been on the front of the caboose; I changed my place ; I tried to walk from the front of the cupola to the rear, walking along the side; I was moving along as I have just described here, taking hold of the grab irons, and walking around the narrow space at the side of the cupola; I was facing the rear of the train; as I was moving along I was struck off by this pole.”