211 Mass. 586 | Mass. | 1912
This is an action under the employers’ liability act to recover damages for the death of Alexander W. Mackenzie, who was killed while working as fireman on a switching engine at the Beacon Park freight yard of the defendant in Boston. From the northerly main track in the yard ran what was known as a lead track; and with this latter, by means of switches, were connected various side tracks running in an easterly direction and parallel with the main line. The one nearest to the main line was number 5, and beyond this were numbers 7, 9 and 11. The accident occurred at about 10.50 in the evening of February 14, 1906, while a switching crew was making up a freight train on number 11. Cars were temporarily thrown upon the different side tracks, and then withdrawn therefrom and put on number 11 in their proper order for the trip. A box car with no brakeman riding thereon had been kicked upon number 5 and was left so near to the lead track that when the engine continued over the lead to track 7, the engine cab cleared the corner of this car by only from three to six inches. Within two minutes later the deceased was found sitting in the fireman’s seat, with his head about four inches outside the cab window and his skull fractured; and blood was seen on the corner of the box car at the height of the cab window. The question presented to us is whether the case should have been submitted to the jury.
1. That the plaintiff, the mother and next of kin of the deceased, was dependent upon his wages for support at the time of his death is not controverted by the defendant. Mehan v. Lowell Electric Light Corp. 192 Mass. 53.
2. Upon the issue of the due care of the deceased there was
As no question of pleading is raised by the report we assume that the defense of assumption of risk is open to the defendant. Shannon v. Willard, 201 Mass. 377. Leary v. William G. Webber Co. 210 Mass. 68. Clearly it could not be ruled as matter of law that the deceased assumed the risk. The doctrine applying to permanent structures in dangerous proximity to the track has no application here. Donahue v. Boston & Maine Railroad, 178 Mass. 251. And the negligence of the conductor, upon which the plaintiff relies, is not a risk assumed by the latter’s contract of employment. Murphy v. New York, New Haven, & Hartford Railroad, 187 Mass. 18.
3. There was also evidence of negligence on the part of Ford,
This conclusion renders it unnecessary for us to consider whether there was also evidence for the jury of negligence on the part of the engineer. In accordance with the report judgment is to be entered for the plaintiff in the sum of $2,500.
So ordered.
The action was brought by the mother of Mackenzie, who was his Only next of kin. The case was tried in the.Superior Court before Brown, J. At the close of the plaintiff’s evidence the judge ordered a verdict for the defendant and reported the case for determination by this court, judgment to be entered for the defendant if the ordering of the verdict was right, and, if it was wrong, for the plaintiff in the sum of $2,500.