| Mass. | Jan 2, 1895
Taking the most favorable view of the evidence in this case for the plaintiff, we are of opinion that she is not entitled to recover. Her intestate was injured while using a narrow passageway between a railroad track and a cotton platform, which was not designed to be used in this way, although it was sometimes so used. There was a safer way, though longer, provided. Galvin was told to go on to the pier with O’Brien and get a barrel of oysters. Instead of following O’Brien, who took the safer way, he chose the shorter way, and then, without looking to see whether the locomotive engine was coming, proceeded along this way with his truck. He was familiar with the premises, having worked there a year or more. The place of the accident was a pier, where there were several tracks, and the locomotive engine was going up and down the tracks all day long, and the time of the accident was “ just the busy time.” The evidence shows that the intestate, being warned by the shout of a fellow workman, turned round, and, seeing the
There is no evidence in the case to show that it was customary for the engineer to ring the bell or blow the whistle as a warning to the employees on the pier, and they therefore had no right to rely upon a warning being given. So far as the evidence goes, it shows that the men were accustomed to look out for themselves. The way used by Galvin was of the same width throughout its length. There was, therefore, no trap, and the case is thus distinguishable from Ferren v. Old Colony Railroad, 143 Mass. 197" court="Mass." date_filed="1886-10-28" href="https://app.midpage.ai/document/ferren-v-old-colony-railroad-6422248?utm_source=webapp" opinion_id="6422248">143 Mass. 197.
If it be said that there was need of haste, and that therefore Galvin was justified in using the shorter way, the answer is that there is no evidence that there was not time enough to go by the longer and safer way, and, moreover, he was directed to go with O’Brien, who went by the latter way.
It would seem also that there is no evidence which would warrant the jury in finding negligence on the part of the engineer. His act in not sounding the whistle or ringing the bell is the only negligence charged. It is to be remembered, however, that Galvin was not walking upon the track, but at the side of it. While the distance between the rail and the platform is stated to be three and a half feet, there is no evidence as to how much the locomotive engine projected beyond the rail. For aught that appears, there was no reason for the engineer to suppose that there was not room enough to pass in safety. It certainly could not have been anticipated by the engineer that Galvin, when he stood with his back to the platform, would place his truck in front of him and thus lessen the distance.
It is not necessary to decide this point, however, as we are of opinion that, upon the evidence, the plaintiff either took the risk or was not in the exercise of due care, and that the first and second requests for rulings should have been given.
These requests were as follows: “ 1. Upon all the evidence the plaintiff cannot recover. 2. There is no evidence that Galvin was in the exercise of due care.”