182 Mass. 286 | Mass. | 1902
The plaintiff was required, by the contract under which the horses were brought over the railroad, to unload them from the car. This involved his entering the freight
The plaintiff entered the yard through the gate and went to the office in the house nearest the street, and there paid the freight bill. He then asked the night watchman if he was going out to deliver the horses, and receiving an affirmative answer, said, “ Well, come on,” to which the watchman replied, “Well, you go ahead out there, and I will be out in a few moments.” This was in the night, and the plaintiff had no lantern. The car was upon the tracks and beyond the freight houses. The plaintiff passed from the office into the first house, and instead of walking through the houses, went through an open door upon the platform and walked down the platform toward the place where he expected to get the horses. The platform upon which he first came from the door was about twice as wide as those farther along. There was evidence tending to show that the freight house from which he went upon the platform was so filled with merchandise that he could not walk through it, but this evidence was contradicted. The platforms were not well lighted and the plaintiff, in attempting to follow them, walked off the side at a point beyond the jog, and fell. The negligence charged was a failure to light the platform at the point where it was narrowed up. The plaintiff often had been at the freight yard and knew its general arrangement, but testified that he never had had his attention called to the narrowness of the platform. He usually went through the freight houses when going to receive horses, and would have done so that night but for finding them full of goods.
We are of opinion that the verdict for the defendant was ordered rightly. The platform was not a way provided by the • defendant for persons to go to cars in the yard, nor was it held out by the defendant to be such a way. It was made and fitted
If the plaintiff, being required to unload the horses, was entitled to have some reasonable method of access to the car containing them afforded him, and might have declined to attempt to find his way to the car in the dark and without a guide, he did not so decline. On the contrary he voluntarily sought to find a way, and when he found his approach through the houses obstructed by goods, he voluntarily chose as a way a series of platforms which he knew were made for the handling of goods, and which obviously were so dark as to make dangerous his use of them to gain access to the car he was seeking. If this was not negligence, it was a voluntary acceptance of the danger of walking off the platform while on his journey to the car. The platform was a proper one for the purposes for which obviously it was intended, and the plaintiff was not injured by reason of any hole in it, or any defect in its surface, or any obstruction left upon it, or any breakage of the structure. Choosing to use it in the darkness as a way, he voluntarily incurred the risk of walking off the edge of it and of falling.
The facts that the platform was not designed or held out as a way and that there was no defect in its structure having regard to the purposes for which it was made and used, distinguish the case from those relied on by the plaintiff. In Holmes v. North Eastern Railway, L. R. 4 Ex. 254, L. R. 6 Ex. 123, 40 L. J. (N. S.) Ex. 121, the plaintiff was upon a flagged walk used by customers as a way, and which he must use to get his coals. The statement of Cleasby, B. in Wright v. London & North Western Railway, 1 Q. B. D. 252, at page 257, that Holmes v. North Eastern Railway “ established that where a man is on the premises of a railway company for the purpose of carrying into effect a contract of carriage and delivery, and gets the assent of the company (as indicated by the usual course of business) to assist in the delivery, the plaintiff is entitled to redress if the
In Wright v. London & North Western Railway, L. R. 10 Q. B. 298, 1 Q. B. D. 252, the plaintiff was negligently run into by a train while assisting to move the car in which was his heifer, which was to be delivered to him. In Sharrooh v. London & North Western Railway, 1 C. P. D. 70, the plaintiff was specially directed to a siding outside the freight yard, and while proceeding to it his horse became frightened and fell down an, unfenced bank. In Marney v. Scott, [1899] 1 Q. B. 986, the plaintiff was hurt by the breaking of a ladder which was his way to the hold of a vessel.
In Bradford v. Boston & Maine Railroad, 160 Mass. 392, Toomey v. Sanborn, 146 Mass. 28, and Marwedel v. Cook, 154 Mass. 235, the plaintiffs were hurt upon places designed and fitted for foot travel.
It is contended that it should have been left to the jury to say whether the platform was the passageway which the defendant had provided for the plaintiff. The arrangement of the yard makes it plain that there were other means of approach to that part of it beyond the freight houses where cars to be unloaded by the consignees were left, and while the platform was designed for other purposes than a passageway, there is no evidence that it was allowed to be used for the latter purpose. Whether or not it might have been found that the plaintiff’s situation allowed him to use the platform for a passageway, we think that in entering upon it as he did he used it at his own risk, so far as its construction, shape and its condition as to light were concerned.
Exceptions overruled.