190 Mass. 125 | Mass. | 1906
The plaintiff, a brakeman employed by
The train which served the defendant company was known as the Salem freight, and it switched into the yard of the defendant at least once a day, and sometimes oftener, either delivering loaded cars, placing empty cars in position for the reception of freight, or hauling away cars which had been loaded. While in the yard the train switched up and down several tracks, as the business required.
On the right of track one, as you entered the yard, was a scale house, and at a little distance from the entrance, on the same side, was a wooden building with a porch, and then an area extending along the track between buildings, a distance of about thirty feet, and then a brick building standing nearer to the track than the wooden building. On the day of the accident there was a quantity of rattan piled like cord wood along the line of the track, at one side of it, between the wooden building and the brick building, the bundles being laid regularly in the pile with their bent ends toward the track. The face of the pile at the corner of the brick building was at the same distance from the track as the building itself, and it gradually receded from the track as it extended towards the wooden building.
On the day of the accident a big broad furniture car was being pushed by the engine up track one, from the switch at the scale
The plaintiff had heen employed by the railroad company as a brakeman a year and a half, and he had been on the Salem freight train for a period of about six months before the accident. During this time he had been accustomed to go about on the tracks in the defendant’s yard, switching cars daily. He testified that, because of the illness of the brakeman who acted as flagman, he had acted as flagman most of the time for three or four weeks before the accident, and his duties then kept him out of the yard most of the time. At the previous trial he had testified that, for five or six weeks before the accident, he was down the track on which he was hurt once or twice a week.
The uncontradicted evidence from a large number of witnesses, those called by the plaintiff as well as those called by the defendant, was that the defendant’s freight yard was much crowded, and that it was a custom to pile rattan in the spaces between the buildings, and wherever a vacant space could be found. One Wiley, a witness called by the plaintiff, said, “ The rattan is all over the yard. They store it, use the whole yard more or less on each side of the track for sorting. They move it about on a hand-car. . . . When the defendant company is receiving cargo it is a usual experience to find rattan in the place in question.” The conductor of the train, called by the plaintiff, testified that “ the rattan is changed about from time to time in the yard; that he had seen rattan stacked in the place where it was the morning that Flansberg was hurt, as it was handy to the door; that he could not say how long the rattan had been in that particular space at this time; that the piles changed as they shifted them about, either using a hand-car or carrying it about.” On re-cross-examination he testified that he thought the rattan had been in the narrow space between the brick building and the wooden building three or four weeks, but he could not state that it had been in the same substantial condition. The fireman, who was running the engine in the place of the engineer at the time of the accident, and was called as a witness by the plaintiff, testified “ that the Salem freight shifted into the yard of the
This evidence was entirely uncontradicted, except by the testimony of Grimes, who had been the flagman on this train, and whose duties did not ordinarily take him into the yard. He said he had not seen rattan piled at this place before the accident, but he said, “ There was a crowded condition of things, a pretty close place — it runs to a point. That he had seen rattan three or four feet high and might be more.” The plaintiff himself also said he had not seen rattan piled in that place before the day of the accident, but he testified that he had seen it in places between the tracks, a couple of feet high. He said: “ I have never seen in that yard a pile of rattan high enough to rake me off of the position in which I was on that Car or near enough to the track to do it.” “ I was familiar with that freight yard, with the buildings and with the location of the tracks. ... It is rather contracted.”
With nothing but the negative statement of the two witnesses that they had not seen rattan at this particular place, and with no contradiction of the testimony introduced by both parties as to the character and general mode of use of the yard, we come to the particulars of the accident. The brick building which the plaintiff was about to pass on the car was only three feet and six inches from the track. The plaintiff testified that the
Exceptions sustained.