165 Mass. 267 | Mass. | 1896
There was no conflict in the evidence as to the material points. The position of the tracks was open and visible. The use and the size of the Star Union cars were known to the plaintiff. The side tracks were used as storage tracks, and were generally filled with cars. At the place where the plaintiff was hurt, the side track was parallel with the track upon which he was riding, and had not begun to curve in towards the other track. If the car had been left upon the curve, nearer the point of junction, the case would be different; but its distance from, the track upon which the plaintiff was riding was no less than it must necessarily be, if standing upon the side track at all. The defendant did not owe it as a duty to the plaintiff to change the position of its tracks, or to discontinue the use of Star Union cars upon its railroad, or to make a change in its custom of storing these and other cars upon the side track; and therefore in a legal sense the defendant was guilty of no breach of duty and of no negligence towards him. If the plaintiff entered into the employment of the defendant, he must be held to have assumed the risk arising from these things. Lovejoy v. Boston Lowell Railroad, 125 Mass. 79. O'Maley v. South Boston Gas Light Co. 158 Mass. 135. Fisk v. Fitchburg Railroad, 158 Mass. 238. Gleason v. New York New England Railroad, 159 Mass. 68. Kleinest v. Kunhardt, 160 Mass. 230. Goldthwait v. Haverhill & Groveland Street Railway, 160 Mass. 554. Thain v. Old Colony Railroad, 161 Mass. 353. Goodes v. Boston & Albany Railroad, 162 Mass. 287. Tuttle v. Detroit, Grand Haven, & Milwaukee Railway, 122 U. S. 189.
Exceptions sustained.