332 Mass. 215 | Mass. | 1955
This is an action of tort for personal injuries sustained by the plaintiff on February 27, 1946, while in the employ of the defendants. The declaration was in two counts, but the first count which set forth a cause of action at common law was waived at the trial. The second count was based upon the Federal employers’ liability act. U. S. C. (1940 ed.) Title 45, §§ 51, 53, and 54. It was agreed at the pre-trial hearing that the plaintiff sustained an injury arising out of his employment, and at the trial it was agreed that the plaintiff was engaged in interstate commerce at the time of the accident. These agreements bring this action within the scope of the Federal employers’ liability act. The action was tried to a jury who returned a verdict for the plaintiff. It comes here upon the exception of the defendants to the denial of their motion for a directed verdict. There was no error.
We summarize the evidence most favorable to the plaintiff. At the time of the accident the plaintiff was a yard conductor in charge of an engine and crew engaged in switching operations in yard 1 of the Worcester yard of the defendants. Prior to this time he had been in the employ of the railroad in similar work for more than twenty-four years. On the day of the injury it was hailing, snowing, and sleeting. He was engaged in making up freight trains, setting cars for sidings, and classifying cars for the trains. Cars which were to make up the freight train were assembled on track 17 and others were put on track 15. These tracks ran parallel and adjacent to each other in a northerly and southerly direction. During the switching operations he had to walk between cars on tracks 15 and 17. He was unable to walk between the cars facing forward but he had to walk sidewise and squeeze his way through. Each car was forty feet long. When he had the cars he wanted lined up on track 17 he gave his engineer a signal to move them. The front end of an engine was coupled to the front end of the first car of the train on track 17 and the engine backed out
The plaintiff admitted that he was familiar with certain rules of the railroad which were in effect when the accident
In these circumstances the defendants assert: (1) There was no negligence on the part of the defendants. (2) There was no negligence on the part of the defendants which was the proximate cause of the accident. (3) The sole proximate cause of the accident was the plaintiff’s own negligence and violation of well known rules of the defendants, which it was his duty as a conductor in charge of switching operations to enforce and himself to obey.
At the outset we think we ought to direct attention to certain provisions of the Federal act which appear to be applicable to the facts in the case at bar. Section 51 reads in part, “Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury . . . resulting in whole or in part from the negligence of any . . . employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars . . . track, roadbed . . .. ” Section 53 provides that contributory negligence shall not bar recovery but shall apply only to diminution of damages. Section 54 provides that no employee shall be held to have assumed the risks of his employment in any case where an injury resulted in whole or in part from the neglect of any of the employees of such carrier.
We have had occasion to consider the effect of this Fed
The defendants contend, however, that as matter of law the conduct of the plaintiff was the sole proximate cause of his injuries because of his knowledge of the dangerous condition of the tracks and because of his failure to obey certain rules of his employer. We recognize that this contention might be sustained if there were no evidence at all of negligence on the part of the defendants. Indeed this appears to be the situation in the many Federal cases relied upon by the defendants.
Here, however, there was ample evidence of negligence of the agents of the defendants particularly by reason of defects or insufficiency in its tracks or roadbed which contributed in whole or in part to the injuries of the plaintiff. Applying the doctrine of the Murphy and Keough cases we are of opinion that this case was properly submitted to the jury. To hold otherwise would require the application of the doctrine of contributory negligence or of assumption of the risk, both of which are barred by the Federal act.
Exceptions overruled.
Rule S60: “Men employed in train, yard and engine service must be familiar with surroundings and inform themselves as to the location of openings, structures and obstructions where clearances are close.”
Rule S61: “When engaged in the switching of cars or in the removal of trains, employees must be careful to avoid injury to themselves and others and each employee must look after and be responsible for his own safety.”
Rule S63: “Employees must not board or alight from cars or engines or cross tracks until they are certain there are no cars or engines approaching, or openings or obstructions liable to cause injury.”
Rule S64: “Employees must not lean beyond the line of cab or car without exercising care to avoid being struck at points where clearances are close.”
Rule S66: “Sight and hearing are important senses where equipment is handled. Therefore, never stop looking and never cover your ears while working around cars or tracks where movements are being made.”