211 Mass. 570 | Mass. | 1912
The plaintiff was walking from the Trinity Place station to the Huntington Avenue car yard of the defendant, for the purpose of returning' his tools and delivering the usual written statement of his day’s work. Along the middle of the railroad location there was a fence; and north of this was the main track for outbound passenger trains and a spur track which led into the yard. Flaherty was walking alongside this spur track and close to a fence that formed the northerly bound of the location when he was struck from behind by a train of empty cars that was backing out from the South Station to the yard.
The path travelled by the plaintiff was a dangerous one, but we
The evidence would warrant a finding that the injury was due to the negligence of one Whalen, the rear brakeman oh train 10. He was in charge or control of the train, which he could slow up or stop by applying the air brakes; and for his negligence the defendant is responsible. R. L. c. 106, § 71. He admittedly knew that employees were likely to be on and near the track at the place of the accident, and especially at that hour; he testified that it was his business “to look, out for anybody or signals, everything;” that his hand was on the valve and by turning it he could check or stop the train which was entirely within his control; and that a man on the rear platform would have no difficulty in seeing a person who was walking near the fence. The place was well lighted, yet for some unexplained reason Whalen failed to see the plaintiff before the accident. Upon the evidence the jury would be warranted in finding that the accident was due to his failure to stop
The defense of assumption of risk is not set up in the answer, but counsel have raised no question of pleading. Under the doctrine of contractual assumption of risk the defendant owed no legal duty to the plaintiff to protect him from the dangers that were incidental to his employment as ordinarily and carefully conducted. Here, however, it could be found that the plaintiff’s injury was due to a risk that was not usual or ordinary, namely, the approach of a train without the customary warning signal, and the subsequent negligent failure to stop the train. The negligence of the defendant or of those for whose carelessness it is legally responsible, is not assumed by the plaintiff. To rule that the defendant owed the plaintiff no protection from the consequences of its own neglect would be to nullify the statutory provision which expressly imposed upon the defendant a duty towards the plaintiff. Here, as generally, it is for the jury to say whether the plaintiff appreciated the risk of the danger from which he suffered and voluntarily assumed it. And the burden of sustaining this issue is upon the defendant. Leary v. William G. Webber Co. 210 Mass. 68.
In accordance with the report, judgment is to be entered for the plaintiff in the sum of $2,500.
So ordered.