154 Mass. 529 | Mass. | 1891
It was a question of fact for the jury whether the place where the plaintiff was injured constituted a defect in the road-bed, and whether its existence was due to the negligence of the defendant. There was evidence tending to show that it had been there a week or more, and looked as though it had been dug out for a drain, and that there was a larger space between the switch-rod and the ground than at any other switch in the yard. There was also testimony tending to show that the distance between the switch-rod and the ground was about five and a half inches, and that the distance was about the same between the switch-rod and the tie. Some of the witnesses spoke of it as a hole; and evidence was introduced, without objection, that after the accident, and before the trial, it was partially filled up and repaired, so that the distance between the switch-rod and the ground was made considerably less than at the time of the accident. It is true that the railroad company was not bound to have the distance between the switch-rod and the ground the least that would admit of the working of the switch, but it was required to use reasonable care in seeing that the place was such that those of its employees who might have occasion to pass over it in the discharge of their duties could do so with safety, provided that they themselves were in the exercise of due care. It was for the jury, upon all the evidence, to say whether the railroad company had fulfilled this duty, and
It was also a question for the jury whether the plaintiff was in the exercise of due care. It was for them to give such weight as they thought it fairly deserved to the testimony relating to his familiarity with the yard and with the switch where the accident occurred and its condition; to that relating to the manner in which he attempted to uncouple the cars, and to the reasons given by him for going between the cars and walking along between the rails; to the testimony of the' yardmaster as to what he told the plaintiff about going between the cars; and to other matters which appeared in evidence on the one side or the other. Even if the plaintiff had known of the existence of the hole, it was not conclusive, evidence of a want of due care on his part for him to get into it, if that happened while he was in the discharge of his duty, and while his attention was directed to the work in which he was engaged. Snow v. Housatonic Railroad, 8 Allen, 441. Plank v. New York Central & Hudson River Railroad, 60 N. Y. 607.
The plaintiff, however, testified that he never noticed any hole or anything of the kind there. There was testimony that it was customary to step in between the cars to couple or uncouple them ; that whether the man stepped in between the rails depended on circumstances; that the chances were just as good in between the cars and the rails as on the outside ; that if the pin stuck, one could not always stand outside the track and rails and pull it out; and that when the plaintiff went to pull out the coupling-pin it stuck, and he walked along between the cars, which were moving slowly, trying to pull the pin out, and waiting for them to slack in accordance with his request, so that he might pull the pin out and uncouple the car as the conductor had directed him to do, and that he did not think anything at all about the switch. We cannot say, upon this and other evidence in the case, that the plaintiff was, as matter of law, guilty of negligence, and that the verdict of the jury in
The second ruling requested by the defendant was rightly refused. The ruling asked for assumed that it was not necessary for the plaintiff in the discharge of his duty to go between the rails. Whether it was necessary or not was one of the issues directly involved in the case, and on which testimony was introduced on both sides. The court could not, therefore, assume that it was not necessary. Again, it does not appear what authority the yardmaster had over the plaintiff, or whether he had any. If he had none, then what he said to the plaintiff was in effect nothing more than a caution addressed by one fellow servant to another. Perhaps the real significance, in either aspect, would lie in its effect upon the question whether the plaintiff did or did not use due care; but in the present case the error lay in assuming what was not shown to exist, namely, that the plaintiff was bound to obey the directions of the yardmaster. Further, if we assume that the plaintiff was bound to obey the directions of the yardmaster, and that what was said by the yardmaster to the plaintiff was a direction not to go between the rails in removing the coupling-pin, still there was no evidence of any rules established by the defendant road forbidding it, and the plaintiff was afterwards told by Campbell, the conductor of the train which the plaintiff was helping to make up, and under whose immediate control he was at the time, that he wanted the cars cut off in between; and the plaintiff may well have understood that, even if what was said by Campbell was not an order to go in between the cars, he was authorized to cut them apart by going in between them in such mode as appeared to him in the exercise of ordinary care to be necessary.
The instructions requested were, therefore,' rightly refused, and those that were given are, so far as stated in the bill of exceptions, correct. The entry must therefore be,
Exceptions overruled.
