153 Mass. 297 | Mass. | 1891
This is an action for personal injuries, and the question is whether there was any evidence on which the plaintiff was entitled to go to the jury. There was evidence tending to prove the following facts.
A train with coal cars in the middle and box cars behind them was to be broken up in the defendant’s Lynn freight yard. As the train was about to start, the plaintiff, a brakeman, was ordered by the conductor, under whom he was working, to separate the box cars from the coal cars, and to fide upon one of the coal cars, probably for the purpose of pulling out the pin and separating the box cars behind. He started to get on the rear coal car from the side, put one hand on the top, and tried to put his left foot on the jaw-strap, an iron bar running below and between the ends of the axles out of sight under the body of the car. The jaw-strap was not there, the plaintiff’s foot went on to the rail, the train was just starting, and his foot was crushed.
The jaw-strap was intended only to strengthen the car. But the coal cars are not provided with any means for getting upon them, and the usual way in which the men got upon them was over the side, using the jaw-strap as the plaintiff attempted to do. The jury were warranted in finding that the plaintiff, although not directed to get upon this particular car, naturally would do so, and would be expected to do so in carrying out his orders, and in the way in which he did, and that he might have done so prudently if the jaw-strap had been there. We cannot say, as matter of law, that there was no prudent way of getting on to this kind of car for men experienced in the business, or that the way adopted was not the best. The conductor might have been found free from negligence in giving the order, even if he had ordered the plaintiff to get directly upon this car, as he did not know of the absence of the jaw-strap, so far as appears. On the other hand, there was evidence that the jaw-strap had been gone for some time, from which it might be inferred that the company knew of its absence, so that the jury might have found that the company ordered the plaintiff into a place where
We do not consider whether, in view of the constant use of the jaw-strap as a means of getting upon the car and the fact that we cannot pronounce it to be a negligent use, the company might not properly be taken to have notice of it, and if it did not prohibit such use, which probably would have seemed absurd to all concerned, then to be bound to see that the jaw-strap was reasonably safe for this secondary use, although not that for which it was designed. No such question is open on the exceptions.
We do not put our decision on the identification of master and servant, and a* union of the knowledge of the corporation and the command of the conductor in one person, by a fiction. But we think the jury might have found, at least, this negli. gence on the part of the corporation: that, knowing the condition of the car, it put a conductor there with men under him, having reasonable ground to anticipate that such orders would be given as were given, without warning either him or the men.
In order to connect this anterior negligence of the corporation with the plaintiff’s injury, it was necessary to show that the plaintiff actually was ordered into the dangerous place. The jury might have inferred that the fair import of the order was to get on to the last coal car from a consideration of what was to be done.
Evidence that it was customary for brakemen on the Eastern Railroad, and especially in that yard, to get qn over the side, was admissible to show that the order also fairly implied that the plaintiff should get on in the usual way, as he tried to do.
We are far from saying that the broader considerations laid before the jury were not correct, but we confine our decision to what is sufficient to dispose of the exceptions.
Exceptions overruled.
