223 Mass. 144 | Mass. | 1916
The plaintiff, a brakeman in the employ of the defendant in the first named action, hereinafter called the railroad, was injured by being crushed between the side of a coal car and a post on the premises of the defendant in the second action, hereinafter called the coal company.
At the time of the accident, the plaintiff was holding the grab handle, standing on the step of the forward end of a moving car, was caught by a post between tracks three and four and thrown to the ground. This post was three feet one and five eighths inches from the track, and was the only post between tracks three and four. It was used as a support for an overhead framework upon which there was a narrow gouge track for the operation of small coal cars. The plaintiff testified that he never had seen this post nor had his attention called to it. Between tracks four and five there were six posts, varying from three feet six inches, to three feet nine and one half inches from track four, and four feet three and one half inches, to four feet and three fourths inches from track five. Between track five and the fence around the premises,
The tracks were constructed by the railroad, under an agreement with the coal company, the latter to pay the expenses of construction. By the contract the coal company was to keep the track in proper repair outside the railroad location, the railroad company having the right to “refuse to operate on said track when its condition is unsatisfactory to the railroad.” The coal company could terminate this contract on ten days’ notice and the railroad on thirty days’ notice, “upon the failure of the said shipper to comply with reasonable rules and regulations of the railroad.” The railroad was not a subscriber under the workmen’s compensation act. St. 1911, c. 751, Part IV.
1. The plaintiff contends that the railroad was negligent because of the nearness of the post to the track, the insufficient light which made the place unsafe and because of its failure to warn and instruct the plaintiff. A railroad company is not bound to instruct and point out to an experienced brakeman the location and distance of the abutments, bridges, poles and switches along the line of its track where he may be called to work, even where these objects are upon its own land. Kempton v. Boston Elevated Railway, 217 Mass. 124. Bence v. New York, New Haven, & Hartford Railroad, 181 Mass. 221. Ryan v. New York, New Haven, & Hartford Railroad, 169 Mass. 267. Vining v. New York & New England Railroad, 167 Mass. 539. Thain v. Old Colony Railroad, 161 Mass. 353. Fisk v. Fitchburg Railroad, 158 Mass. 238. Where these conditions exist at the time of employment, and are obvious, there is no negligence in continuing them, because no duty
The railroad did not construct the post between tracks three and four. It had no control over it, and was not guilty of negligence because the coal company maintained it at this place as a support to its overhead structure. Nor was the railroad in any way responsible to the plaintiff for the condition of the lights. That was a work undertaken entirely by the coal company, with reference to which the railroad assumed no responsibility.
2. The coal company was not negligent in maintaining the post or in failing to warn the plaintiff of the danger which might arise from it. When the track was built, the coal pockets, the overhead track and the poles were placed substantially as they were when the plaintiff was injured. From April or May, 1912, the tracks were constantly in use, and it might reasonably be inferred that the men working there night after night were familiar with all the surroundings. It was not obliged to inform itself when an employee of" the railroad began working in the yard and tell him of the danger. Shaw v. Ogden, 214 Mass. 475. Marston v. Reynolds, 211 Mass. 590. Sullivan v. New Bedford Gas & Edison Light Co. 190 Mass. 288.
The duty owed by the coal company to the employees of the railroad is the same as the duty owed to the employees of an independent contractor invited on its premises. The employees.
There was evidence that the light nearest to the post where the plaintiff was hurt was out, and also that the only light in the yard came from an electric street light. It is suggested in the coal company’s brief, that in switching coal cars where signals are given by lighted lanterns, the work is not facilitated if the yard is illuminated. That may be true, but it is purely a question of fact. The defendant for some purpose had installed electric lights in the yard and the duty of one of its employees was to keep the lights in good condition, “to keep the lights burning at the time coal was being shipped out of there.” While.it may be true on the evidence disclosed, that the coal company was not obliged to light the yard for the convenience of the railroad or of its servants and agents, and is not liable in damages to the plaintiff because of the mere fact that the yard generally was illuminated and on this night was dark, it is responsible, however, to the plaintiff, if it maintained the lights in the yard to assist him and his fellow servants in shifting and transferring the coal cars and they relied on this practice of the coal company. In voluntarily assuming this duty, it may be held liable for failure to comply with it. If the coal company kept the yard illuminated for the purpose stated and the plaintiff relied on the practice, and because of its failure in this respect he was injured, by failing to see the post, owing to the darkness, the jury could find the coal company to be negligent. It does not expressly appear for what purpose the. yard was illuminated, but the jury could say it was for the purpose of aiding the men in doing their work and that the coal company assumed this duty. Hanley v. Boston Elevated Railway, 201 Mass. 55, 57. “Evidence of the usage of the road, that one train should not enter a station while another train was engaged in delivering passengers there, was competent upon the question whether the defendant’s servants managed the train in a' proper manner.” Floytrup v. Boston & Maine Railroad, 163 Mass. 152, 153.
The position of the coal company in habitually lighting the yard and its failure to comply with the practice in the present case is in some respects the same as that of the defendant who violates one of its own rules established for the safety of the public. If the usage, like the rule, is established for the safety of others, its violation by the company’s servants is a departure from the standard of care it has itself decided to be necessary, and is evidence of negligence. As stated by Knowlton, C. J., in Stevens v. Boston Elevated Railway, 184 Mass. 476, at page 480: “Against the proprietor of a business, the methods which he adopts for the protection of others are some evidence of what he thinks necessary or proper to insure their safety.”
There was evidence of the plaintiff’s due care. The jury might say, considering the darkness, the place where he mounted the car and the short space of time intervening between this act and the collision,
In the case against the Boston and Maine Railroad the plaintiff’s exceptions are overruled.
In the case against Sprague, Breed and Brown Company the plaintiff’s exceptions are sustained.
So ordered.
The cases were tried together before Hardy, J., who at the close of the evidence for the plaintiff ordered a verdict for the defendant in each action. The plaintiff alleged exceptions.
The plaintiff testified that he mounted at the side of the car near the end and was in the act of passing to a position between the ends of the cars when he was struck.
