Heyward v. Boston & Albany Railroad

169 Mass. 466 | Mass. | 1897

Knowlton, J.

The contract between the plaintiff and the defendant was made upon the assumption that the plaintiff, or some one employed by him, was to go upon the train to take care of the horse, and the price paid for the transportation was paid for the carriage of the attendant as well as for that of the horse. New York Central Railroad v. Lockwood, 17 Wall. 357. The case differs materially from Quimby v. Boston & Maine Railroad, 150 Mass. 365, where the plaintiff was being carried gratuitously, and from Hosmer v. Old Colony Railroad, 156 Mass. 506, where the plaintiff was not in the relation of a passenger, but rather of one who had contracted for the privilege of carrying on a business for his own profit ori the defendant’s train.

If we assume in favor of the plaintiff that the contract was void as against public policy in that part which purported to exempt the defendant from liability for the negligence of its servants, (see Doyle v. Fitchburg Railroad, 166 Mass. 492, and New York Central Railroad v. Lockwood, 17 Wall. 357,) we come to the question whether there was any evidence of negligence on the part of the defendant. The plaintiff by his contract was not to ride upon a train adapted to the carrying of passengers. The writing signed by him contained this provision: “ That whenever the person or persons accompanying said stock under this contract to take care of the same shall leave the caboose and pass over or along the cars or track of said carrier, of of connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause, and neither the said carrier, nor its connecting carriers, shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock to take care of the same under this contract.” From the nature of the transaction, as well as from the express terms of the writing, the plaintiff well knew that the defendant was to run its train as freight trains usually are run, and that there would be many risks in going upon it to which persons on passenger trains are not exposed. He had often accompanied horses on freight trains, and he knew the usual movements of freight trains at stations, in stopping and starting, and in switching and taking on and leaving off cars. He knew that there is often quite a jolt, in connection with stopping or starting, to one upon the rear car of a long freight train. He testified that he had experience of frequent stopping and starting on this trip before he reached Worcester. So far as this was reasonably incident to the running of the train, he took the risk of it when he made his contract. The defendant did not undertake to manage its train with unusual care "because he was upon it.

We see no evidence that the defendant’s servants did anything for which they were culpable. When the plaintiff was about to get off the train a long way east of the station in Worcester, the brakeman very properly told him that that was not the place where he wanted to get off, and when the train had started and stopped again he repeated the warning. Afterwards he told him that they had reached the place where be wanted to alight. In giving him this information,, he did'not intimate that the train would wait there for the convenience of passengers. The plaintiff had reason to know that the brakeman had not communicated with the engineer or conductor in regard to any special mode of managing the train for the plaintiff’s safety or convenience, and that the train was liable to be started in either direction at any moment. There was no negligence on the part of the brakeman in telling the plaintiff that they had reached the place where he wanted to alight, inasmuch as it was fairly implied that the plaintiff was to look out for his own safety in attempting to alight.

Nor is there any evidence of negligence on the part of the engineer or conductor in moving the train at that point, for there is nothing to show that either of them was aware that the movement would be attended with any special risk to the plaintiff. Indeed, the plaintiff, in his specification of the negligence relied on, which is made a part of the pleadings, does not allege any negligence in this particular, but charges as the only negligence relied upon that the train was stopped and started in a sudden and violent manner. To support this allegation there is nothing but his own testimony that he was seventy years of age, and that as he was walking near the middle of the caboose, without having either of his hands upon anything, an unexpected and sudden movement of the car threw him down. In this fact alone we do not discover any evidence that the movement was different from that which often occurs at the end of a long freight train, without the fault of the engineer or conductor.

We are of opinion 'that there was no evidence of negligence on the part of the defendant. Judgment on the verdict.