Brosnan v. New York, New Haven, & Hartford Railroad

200 Mass. 221 | Mass. | 1908

Knowlton, C. J.

There was ample evidence to warrant a finding that, during the illness of Phelan for several weeks before the accident, Kelley was employed by the defendant as a superintendent whose sole or principal duty was that of superintendence.

The evidence tended to show that the direct and proximate cause of the accident was the attachment of the rope to the locomotive engine on the turntable by putting the point of the iron hook into the hole in the knuckle where the coupling pin is usually placed, instead of winding the rope around the knuckle and making a hitch with the hook upon the rope. As a result of this, when the other engine, to which the other end of the rope was fastened, started up, the hook straightened out and flew, from the strong tension of the rope, and struck the plaintiff on his jaw and caused the injury. The evidence tended strongly to show that this was an unsafe and improper way to fasten the rope, that it was done in the presence and with the knowledge of Kelley, and that Kelley was negligent in permitting it to he done, and in then giving the order to start the other engine.

The jury might well find that the plaintiff was in the exercise of due care. He was in the performance of his duty under the direction of the superintendent. Nor can it be said as a matter of law that he knew and appreciated the risk from this unusual method of using the hook and attaching the rope to the engine. It does not appear that he had ever had experience as to risks of this kind, and he well might trust much to the oversight of the superintendent. The defendant’s request for a ruling that the plaintiff could not recover on the second count of his declaration was rightly refused. Gagnon v. Seaconnet Mills, 165 Mass. 221. Reynolds v. Barnard, 168 Mass. 226. Grimaldi v. Lane, 177 Mass. 565.

There was also evidence that the locomotive engine started up with a jerk which naturally would tend to break the connection with the other engine and to expose a man holding the rope to unnecessary danger. The jury might have found from this evidence, although it was contradicted, that the accident was caused by the negligence of the person in charge and control of the locomotive engine, which started up and caused the hook to straighten out and fly and strike the plaintiff. Thyng v. Fitchburg Railroad, 156 Mass. 13, 18. Shea v. New York, New Haven, & Hartford Railroad, 173 Mass. 177. The request that the plaintiff was not entitled to recover on the fourth count of the declaration was rightly refused.

Exceptions overruled.