| Mass. | Oct 13, 1883
The rules of law which are applicable to this case are well settled in this Common wealth.
It was the duty of the defendant to furnish a locomotive engine suitable for the work which it required the plaintiff to perform with it, and to exercise ordinary care in the performance of this duty, and it was responsible to the plaintiff, if he was using due care, for an injury resulting from its negligence or want of ordinary care in this respect. It did not necessarily discharge this duty by entrusting it to suitable servants and agents, but was responsible for the negligence or want of ordinary care of such servants and agents in the performance of the duty required of them. Such servants or agents, in the performance of this duty, were not the fellow servants of the plaintiff, but were charged with the duty required of the defendant. Ford v. Fitchburg Railroad, 110 Mass. 240" court="Mass." date_filed="1872-10-15" href="https://app.midpage.ai/document/ford-v-fitchburg-railroad-6416965?utm_source=webapp" opinion_id="6416965">110 Mass. 240. Holden v. Fitchburg Railroad, 129 Mass. 268" court="Mass." date_filed="1880-09-16" href="https://app.midpage.ai/document/holden-v-fitchburg-railroad-6420016?utm_source=webapp" opinion_id="6420016">129 Mass. 268. Hough v. Railway, 100 U.S. 213" court="SCOTUS" date_filed="1880-01-12" href="https://app.midpage.ai/document/hough-v-railway-co-90033?utm_source=webapp" opinion_id="90033">100 U. S. 213.
If the engine was suitable for the work for which it was designed to be used and was used, the defendant was not responsible to the plaintiff for an injury resulting from the manner in which it was used by his fellow servants.
It appeared in evidence, that the engine in question was new when it came on the road of the defendant, some three or four months before the accident; that, during all the time it had been on the road, it was used as a “ switcher ”; that it had on the forward end a draw-bar or bunter, some of the witnesses giving it one name and some the other, the device serving the double purpose of draw-bar and bunter. The only defect claimed in the engine was, that this draw-bar was too low for the purpose for which it was designed and used, so that it was liable to pass under the draw-bar or bunter of the car to which it was to be attached, and did so on the occasion of the accident.
The plaintiff, by engaging in the work he was doing, took all the risks ordinarily incident to that work. He was bound to exercise such care for his own protection as the kind of work in which he was engaged reasonably required. He had a right to assume that the defendant had furnished a suitable engine, but if he discovered, or by the exercise of ordinary care ought to have discovered, that the engine was defective because the draw-bar was too low, that was an important element in determining the degree and kind of care required of him in its use. The facts were in dispute. The testimony of the plaintiff was, in substance, that he had not been upon the engine much ; that he did not think he had coupled a car to the front of the engine more than four times; that, when the engine first approached the car, it stopped ten feet from it; that he did not notice the height of the car, and did not know there was any danger that the hunter of the engine would pass under that of the car until he actually attempted to make the coupling and got hurt.
On the other hand, the engineer testified that the plaintiff had worked on the engine most of the time it had been in use; that, as the engine approached the car on the occasion in question, the plaintiff jumped out, and the hunter of the engine passed under that of the car; that he had a conversation with the plaintiff about this, and the necessity of using a crooked link, before the attempt to connect was actually made by the plaintiff. There was also other testimony bearing upon these points.
Whether the plaintiff was in the exercise of due care, under all the facts and circumstances which might be found to be established by the evidence, was for the jury. The court was not to pass upon the weight of the evidence, but only to determine whether there was evidence which should be submitted to the jury. Forsyth v. Hooper, 11 Allen, 419.
For these reasons, we are of opinion that the defendant was not entitled to the first or second instruction requested.
The third and fifth requests raise substantially the same question, and may be considered together.
The fact that a person voluntarily takes some risk is not conclusive evidence, under all circumstances, that he is not using due care. Thomas v. Western Union Telegraph, 100 Mass. 156" court="Mass." date_filed="1868-10-15" href="https://app.midpage.ai/document/thomas-v-western-union-telegraph-co-6415468?utm_source=webapp" opinion_id="6415468">100 Mass. 156. Mahoney v. Metropolitan Railroad, 104 Mass. 73" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/mahoney-v-metropolitan-railroad-6416006?utm_source=webapp" opinion_id="6416006">104 Mass. 73. The plaintiff was engaged in performing the duty required of him, and it was necessary that the cars should be moved quickly to make
Under all the instructions given, we do not think the jury were likely to be misled.
Exceptions overruled.
The defendant asked, the judge to instruct the jury as follows: “1. Upon all the evidence in the case, the plaintiff cannot recover. 2. If the jury find
The judge refused to give the instructions requested, except the third, which he gave with the modification inserted in brackets; and instructed the jury as follows: “ In order to enable the plaintiff to recover, he must prove that he has not been careless or rash. The mere relation of master and servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends danger to himself. If he has knowledge of such danger, of the probability and extent of it, he is negligent in disregarding it, and takes the risk. So, in this case, if the plaintiff, before the injury, knew, or by the exercise of due care might have known, that the draw-bars were of unequal height, so that they would be likely to pass each other, and if he was aware of the probability that the engine would run under the car, and if the plaintiff was aware of the probability and extent of the danger to which he was exposed thereby, and if with this knowledge he voluntarily remained upon the forward part of the engine, and took the risk and danger which he knew to be