333 Mass. 420 | Mass. | 1956
The plaintiff, the foreman of a section gang engaged in replacing old railroad ties on the defendant’s single line of track running between Worcester in this Commonwealth and Norwich in the State of Connecticut, was injured on a pleasant July morning in 1948, when, he al
The plaintiff at the time of the accident had been employed by the defendant for thirty-eight years, during thirty-six of which he performed services as foreman of a section gang. On the morning of the accident he was in charge of a crew of eight men, who were engaged in replacing old ties with new ones. They would dig around the old tie, unspike it from the rail, and pull it out. His men would then make the excavation big enough to slip in the new tie which would be raised against the rail by a raising bar while his men shoveled dirt under both sides of the new tie its entire length and then the tie would be spiked to the rail. The plaintiff testified that he was on his way to pick up a raising bar when he stepped into a depression about two or three inches deep and two feet wide and his foot went into the soft dirt in that hole. At the place of the accident the ties extend nineteen inches beyond the rails. Then there is a shoulder twelve inches wide and next a subshoulder extending down seven or eight feet to a ditch. According to the plaintiff’s testimony it was while he was stepping off the shoulder onto the subshoulder to pick up the raising bar that he stepped into the depression which started near the shoulder and ran down to the ditch, and his feet went down about three feet. The site of the accident was in the country along the roadbed at a place where trains do not stop and where employees of the defendant were not usually expected to be with the exception of some track repair crew. Photographs taken subsequent to the accident and showing the situation in the general vicinity but not the exact spot show that the roadbed is sparsely covered over less than one half of its surface by a thin covering of medium sized crushed rock.
The plaintiff is attempting to enforce in a State court a cause of action created by an act of Congress, and whether
The railroad is not an insurer. Its liability under the act is based solely on negligence with the burden of proof upon the plaintiff. Brady v. Southern Railway, 320 U. S. 476. Moore v. Chesapeake & Ohio Railway, 340 U. S. 573.
The mere occurrence of an accident of the kind and char
A trainman, an important part of whose duties consists in stepping off or getting on trains or in turning switches, usually in a terminal yard or other more or less restricted area, because of the dangerous nature of his duties is entitled to have the railroad exercise a degree of care commensurate to the dangers incurred. If injured or killed as a result of stumbling over a loose or partially embedded lump of coal or a clinker, or a pile of other debris alongside of the track, the determination of the defendant’s negligence is ordinarily an issue of fact for the jury. It is also to be noted that the duties of the injured employee did not in those cases involve the keeping of the grounds or freight yard in a reasonably safe condition. Southern Railway v. Puckett, 244 U. S. 571. Lavender v. Kurn, 327 U. S. 645, 652-653. Brown v. Western Railway of Alabama, 338 U. S. 294. Fleming v. Husted, 164 Fed. (2d) 65, 67. Fleming v. Kellett, 167 Fed. (2d) 265, 266. Marcades v. New Orleans Terminal Co. 111 Fed. Sup. 650. Georgia, Southern & Florida Railway v. Williamson, 84 Ga. App. 167. Bishop v. Montour Railroad, 379 Pa. 562.
We are of opinion that the instant case does not come
Exceptions overruled.
This case is one principally relied upomby’the plaintiff tofsustain his contention.
See 35 A. L. R. (2d) 488 et seq. for collection of cases showing the applicability of res ipsa loquitur to cases under the Federal employers’ liability act.