| Mass. | Mar 2, 1901
This is an action to recover for personal injuries sustained by the plaintiff while in the defendant’s employ in attempting in the course of his duty to get on a moving engine. The accident was caused, or might have been found to be caused, by a pile of rocks which, it was alleged, was in dangerous proximity to the track and which caused the plaintiff to lose his hold and to fall and receive the injuries complained of. The declaration contained three counts. At the close of all of the evidence the third count was withdrawn by the plaintiff at the suggestion of the court. The first count was at common law for not providing the plaintiff a safe place in which to do his work. The second count was under the employers’ liability act for negligence on the part of a person in the service of the defendant and in charge of a locomotive engine, in suddenly increasing the speed of the engine while the plaintiff was attempting to get on it. The jury found, in answer to a question put by the court, that the plaintiff was not injured in that manner. The defendant requested various rulings, but the case resolves itself into three questions, and in effect has been so argued by the
1. The defendant contends that the plaintiff was not in the exercise of due care in attempting to board the engine when he did. It admits that in the course of his duty he was required to get on the engine while in motion, but it says that he should have got on upon the opposite side or on the front or rear of it. The plaintiff testified that the place where he attempted to get on was the place where he had been in the habit of getting on, and that he got on there because he thought it was the safest place. He gave his reasons for not getting on or trying to get on at the other places. The jury took a view. It was for them to say, we think, whether the plaintiff was or was not in the exercise of due care in attempting to get on where he did. There were conflicting considerations and testimony and it was for them to say what weight they were entitled to. It could not be ruled as matter of law that he was not in the exercise of due care. The fact that he had not noticed the pile of stones, or that if he had noticed it he forgot it at the moment, was not conclusive on the question of due care. Snow v. Housatonic Railroad, 8 Allen, 441.
2. Was the defendant negligent in not providing him with a safe place in which to work ? There was testimony tending to show that there was a pile of stones from eighteen to twenty-four inches from the track a short distance from one of the switches which it was the defendant’s duty in the course of his business to throw; that the stones varied in size from a man’s fist to a man’s body, and that the pile was from one and a half to three feet high, and had been there several months and was rough and uneven and looked as if the stones had been thrown there some time when the track was being fixed. It was the duty of the defendant to exercise reasonable care to keep its tracks in a safe condition for its employees to work upon, and we think that there was evidence for the jury of negligence in that regard on its part. Babcock v. Old Colony Railroad, 150 Mass. 467" court="Mass." date_filed="1890-01-02" href="https://app.midpage.ai/document/babcock-v-old-colony-railroad-6423335?utm_source=webapp" opinion_id="6423335">150 Mass. 467. One of the defendant’s witnesses testified that “ they [the stones] were in a dangerous place; . . . they were
3. The remaining question is whether the plaintiff assumed the risk. The plaintiff testified that he had not noticed the stones. The court, amongst other things, instructed the jury that if the plaintiff knew or in the exercise of reasonable care should have known that the stones were at or near the switch and was injured by them he could not recover. This was more favorable to the defendant than it was entitled to. The jury must have found that the plaintiff did not know, or in the exercise of reasonable care was not bound to know that the stones were there. It may be that the weight of the evidence showed that he knew or ought to have known that the stones were there. But under these and other instructions in which the attention of the jury was directed to the matter they settled the question the other way. The defendant contends however that, even if the plaintiff did not know that the stones were there, the risk was an obvious one which he must be held to have assumed. Lovejoy v. Boston & Lowell Railroad, 125 Mass. 79" court="Mass." date_filed="1878-07-19" href="https://app.midpage.ai/document/lovejoy-v-boston--lowell-railroad-6419312?utm_source=webapp" opinion_id="6419312">125 Mass. 79. Goldthwait v. Haverhill & Groveland Street Railway, 160 Mass. 554" court="Mass." date_filed="1894-03-01" href="https://app.midpage.ai/document/goldthwait-v-haverhill--groveland-street-railway-co-6424842?utm_source=webapp" opinion_id="6424842">160 Mass. 554. Thain v. Old Colony Railroad, 161 Mass. 353" court="Mass." date_filed="1894-05-17" href="https://app.midpage.ai/document/thain-v-old-colony-railroad-6424936?utm_source=webapp" opinion_id="6424936">161 Mass. 353. If the pile of stones had been one of many similar piles substantially the same distance from the rails on this and other tracks where the plaintiff’s duties had taken him, it may be that he would be held to have assumed the risk. Lovejoy v. Boston & Lowell Railroad and Thain v. Old Colony Railroad, ubi supra. But no other pile of stones, and no structure as near the track as this pile of stones was, is shown to have existed in those portions of the defendant’s premises where the plaintiff’s duties required him to go. It is not absolutely incredible that a person, employed as the plaintiff was, should not have observed the stones and still should have been in the exercise of due care. We do not think that such conduct would be necessarily inconsistent with the ordinary habits of observation of such persons. It would be going far to say that a pile of stones like this constituted a part of the ways, works and machinery of the defendant. They were thrown out, as there was evidence tending to show, while the road was being repaired, and apparently were suffered to remain there as a matter of inattention and neglect with the possibility that they
Exceptions overruled.