200 Mass. 360 | Mass. | 1909
The defendant is the proprietor of an important manufacturing business in Worcester, and its yard covers a large space upon which are broad gouge tracks for railroad cars and an extensive net work of narrow gouge tracks over which bucket cars are run by dummy engines. Bucket cars are eight feet long and four feet high, built with a platform that carries three iron boxes or buckets, which are unloaded by lifting the buckets from the platform and dumping their contents into the steel furnaces. One Hartman, called a stock chaser, received a list of the different kinds and amounts of material that were needed for the steel furnaces, and he then gave direction to one Locks, who was in charge of the cars and commanded the users of them, the scrap yard engine crew, to take the requisite number of bucket cars to the proper places to be filled, and to make distribution of the quantities that he was called upon to supply. The jury well might have found that Locks had the entire charge and superintendence of the business of getting these various binds of material, called for by Hartman, from the different places where they were kept, and delivering them to the furnaces where they were needed, and that this superintendence was his principal duty. He and his crew were busy loading and unloading, using bucket cars for the delivery of the property. The plaintiff was going about the yard from place to place upon different tracks, with a dummy engine, moving these bucket cars to be loaded and unloaded. The accident happened at ten o’clock at night, from a collision of the engine with a corner of a bucket car which had been standing with others on the next track parallel to that on which the engine was moving, but had been pushed down by hand upon a switch track crossing over to the other, so far that a corner and a part of its side projected over the line of passage of cars and the engine on the other track where the engine was running. Such cars were frequently moved short distances by hand, in connection with loading and unloading, but there was testimony that when they were so moved Locks usually informed the engine crew of it. This car was moved by Locks a short time before the accident, but the engine crew did not know it. Because the regular engineer was away and the acting engineer was not familiar with the yard, the plaintiff was employed as a
We are also of opinion that it was a question for the jury whether the plaintiff was in the exercise of due care. There was much to show that he was not so vigilant as he ought to have been. The engineer testified that he and the plaintiff were talking together, and while he said in general that they were both looking forward, there were indications in his testimony that the plaintiff was not looking carefully. But the plaintiff denied that he was talking with the engineer, and testified that just before the accident he was looking forward to see if the track was clear. We are of opinion that the question whether he was exercising as much care as one ought to exercise under such circumstances was for the jury to determine as a matter of fact.
Exceptions sustained.