| Mass. | Feb 27, 1891
The defendant presented no special requests for instructions, but asked the court to order a verdict for the defendant on the whole evidence. No exceptions were taken to the instructions to the jury in matters of detail, but the defendant contended that the case upon the evidence did not come within the employers’ liability act, and that the plaintiff was not entitled to recover.
The first position taken by the defendant in this court is, that when the plaintiff was injured the conductor was not in charge of the train, within the meaning of the statute. But we think the evidence would warrant the jury in finding that he remained in charge of the train, although he was not upon it at the moment of the injury. It did not appear, and indeed there has been no suggestion, that in the general management of the train anything was done contrary to his orders, or which he would not naturally and reasonably have expected to be done. If the conductor had been present at the time of the injury, he would not probably himself have given an order to uncouple the first dump car from the engine, knowing as he did that it was chained to the engine; bu,t the work which was undertaken at Readville might well be found to be the work which was incident to the proper management of the train, according to his directions or to his understanding and expectation of what was to be done. His personal absence might well be found to have been but temporary, and not such as to require a finding that he was no longer in charge of the train, although he was not at the moment
The defendant further contends, that the conductor was not negligent in omitting to tell the plaintiff of the broken draw-bar, because the movements of the train and the coupling and uncoupling of cars were wholly under his direction, and a brakeman was not expected to uncouple cars without his orders. But when the conductor left the train at Hyde Park, and permitted it to proceed without him to Readville, it might properly be inferred by the jury that he expected and permitted such things to be done as were necessary in the management of the train until he should rejoin it, without a specific order from himself for each particular act; and if so, it might properly be found to have been negligence on his part in omitting to tell the plaintiff of the broken draw-bar.
It is however urged that such negligence, if it existed, was not the proximate cause of the plaintiff’s injury. This objection rests on the same ground as the last, namely, that it was not to be expected that the plaintiff would attempt to uncouple the car without a specific order from the conductor. But the jury were not bound to assume that the conductor expected the whole work to stop because he had temporarily left the train for the purpose stated. The jury might well find that what was done by the plaintiff and the other men upon the train was done in the ordinary course under the circumstances, and that the injury to the plaintiff was a natural and proximate result of the omission to inform him of the broken draw-bar. It was admitted at the trial that the plaintiff “ was injured in attempting to uncouple the car from the engine, so that the engine might go and do something else.”
Nor can we say that the plaintiff was not in the exercise of due care. If such an accident had happened as the breaking of the draw-bar, especially upon a car which was at his end of the train, he might well expect to be told of it by the conductor, if the fact was known to the conductor. There was evidence that, only a short time before, the conductor had spoken to him, telling him in substance to be at his post, at the head end of the train. The conductor knew that the plaintiff yras the very
The notice was sufficient. It states accurately the time, place, and cause of the injury. St. 1887, c. 270, § 3.
Exceptions overruled.