164 Mass. 523 | Mass. | 1895
This case was submitted to the jury on the second, third, sixth, and seventh counts in the plaintiff’s declaration. The jury found for the plaintiff on the seventh count, which alleged that the plaintiff’s intestate was injured by reason of the negligence of some person who had the charge or control of a certain train, in shifting it over upon the track where the plaintiff’s intestate was at work. The count does not allege how or in what manner the shifting of the train led to the injury, but it was not demurred to. See Steffe v. Old Colony Railroad, 156 Mass. 262.
The defendant contends that the plaintiff’s intestate was not in the exercise of due care. There was evidence tending to show that he was the hind-end man on the train of which one Collins was conductor, and that it was his duty to make up the train and put it together and make the couplings. “ If there was any place lacking a pin or link, he was supposed to put it in,” one of the witnesses testified. The last that was seen of him before the accident he was going along towards the rear end of the train with a pin and one or two links in his hands, and he was found at a place where there was a separation between the cars. There was nothing to show that he had any warning or knowledge that the cars which caused the collision
We think that there was evidence which justified the jury in finding that he was in the exercise of due care.
The defendant contends further that the plaintiff’s intestate assumed the risk. There was testimony from which the jury might have found that it was customary to run cars in on the same tracks at the same time from both ends of the yard, while trains were being made up; and it would be reasonable to say that the defendant’s intestate assumed the ordinary risks arising from that method of transacting the business. Lynch v. Boston & Albany Railroad, 159 Mass. 536. But we do not think that it fairly can be held that he assumed the risk of accident from cars which were sent in, as there was evidence tending to show that the colliding cars were, at the rate of ten or twelve miles an hour, and with such force as to throw off the track one car of the train which Collins and his men were making up, and to break the draw-bars of others. Such a manner of doing the business would be unreasonable, and not within any risk which the plaintiff’s intestate assumed.
The defendant also contends that the cars which were switched on to the track where Caron was working did not constitute a train at the time of the accident; that if they did, neither O’Brien nor Desloury nor Mozier was in “ the charge or control ” of it, as the instructions of the court permitted the jury to find they were; and that under the seventh count the defendant could be held liable only in case the accident resulted from the negligence of some one person who had “ the charge or control ” of them in shifting the cars to the track where the plaintiff’s intestate was.
It is not easy to define what under all circumstances would
The next and more difficult question is whether either of the two brakemen, O’Brien and Desloury, or Mozier, the foreman of the switching gang, was in “ the charge or control ” of the train when the accident occurred. The words “the charge or control” do not seem to have received a final construction anywhere. In Gibbs v. Great Western Railway, 11 Q. B. D. 22, Field, J. expresses a doubt whether the words “ charge ” and “ control ” are intended to mean different things. But in the same case in the Court of Appeal they seem to have been re
It is not necessary that the person in charge or control should
Applying these principles to the case before us, we do not think that either O’Brien or Desloury had “ the charge or control ” of the train as it went on to the side track, and after the engine and caboose had been detached, but that they were fellow servants of the plaintiff’s intestate. They certainly had not the charge or control before that, and after it they were still acting as before, under the supervision and direction of Stickles, the conductor, who was on the ground or in the caboose, and had at no time given up the direction or control. The duty of each was to.take care of the brakes on the cars at his own end of the train, and to stop it seasonably, in conjunction with the other, when it had cleared the No. 6 switch. They did not have the charge, and except in a very limited sense, and one as we think not meant, they did not have the control.
We doubt also whether, quoad this train, Mozier, the foreman of the switching gang, could be said to have had “the charge or control.” All that he did was to direct on which track it should be put. “ The charge or control ” of the train and of the men on it remained in the hands of Stickles, the conductor, and it was his duty to see that it was switched on to the designated track. There is nothing to show that, after he had given the direction, Mozier had anything further to do with the train. But even if he had “ the charge or control,” we see no evidence of negligence on his part. There is nothing to show that there was not, as he said to O’Brien, room for forty cars on the No. 4
It was admitted that there was no negligence on the part of the engineer of Stickles’s train, and, while it is not entirely clear, we do not understand that it was contended that there was any negligence on the part of Collins, the conductor of the train that was standing on track No. 4.
We think it sufficiently appears from the instructions contained in the report that the jury must have understood that the plaintiff was entitled to recover only in case there was negligence on the part of a person in charge or control of the train of which Stickles was conductor, in shifting it over on to track No. 4, and consequently that the defendant was not harmed by the refusal to give the specific instruction to that effect which was asked for.
We do not understand the defendant now to argue that there was no evidence proper to be submitted to the jury on the question of the negligence of Stickles.
The second count was for a defect in the ways, works, and machinery, which, it was alleged, “ consisted in an improper and insufficient method of allowing cars to be switched upon the track where said Caron was at work at the time while said track was in use by another train, and in allowing said cars to be so switched without any lights or other signals or warnings to persons while upon said track.” The court instructed the jury, in effect, that a method adopted by an employer for carrying on his business which involved danger to one or more of his servants while they were in the discharge of their duty and using reasonable cafe would be a defect in the ways, works, and machinery. As there may be a new trial, we think it advisable to advert to the instruction thus given. No case has yet gone so far in this State as to hold that a dangerous method of doing business may con-
The question put to Stickles by the plaintiff, in cross-examination, was properly admitted.
Exceptions sustained.
This question was as follows: “ Whether or not, after the caboose was cut off, you assumed any management of the trains ? ”