202 Mass. 491 | Mass. | 1909
In the first of these cases the plaintiff seeks to hold the defendant for the conscious suffering, and in the second for the death, of Michael McNamara, her intestate. His injuries and consequent death were caused by the fact that the roof of a freight car in a train of the defendant was blown from the car and fell upon him. It was not disputed that he was in the exercise of due care in the performance of his duties as a servant of the New Yolk Central Railroad Company. The car belonged to the Central Vermont Railway Company. It had been delivered by that company to the defendant at White River Junction, Vermont, on April 7, 1907; and the defendant had transported it over its lines to Lowell, and there delivered it to the New York, New Haven, and Hartford Railroad Company. Thereafter, on April 23, the defendant received this car at Boston from the Union Freight Railroad Company; and on the next day, April 24, when this accident happened, the defendant had the car in
1. In the first case the defendant’s contention is that the judge should have ruled that there was not sufficient evidence to warrant a verdict for the plaintiff, and that there was error in the judge’s statement that the happening of this accident, if unexplained, was some evidence of negligence. The other exceptions in this case are waived.
The fundamental proposition contended for in the able argument of the defendant’s counsel is that it was not responsible for any defects in this car which were not to be discovered by ordinary inspection. It claims the benefit of the well recognized rule that as to the cars of other companies which it receives in the regular course of business for transportation over its road, it owes at common law to its own employees no other duty than that of having them inspected by competent and suitable inspectors, acting under a proper system and under proper superintendence, and that it may properly receive from other companies all cars which, upon such inspection, appear to be in a reasonably safe condition. Bowers v. Connecticut River Railroad, 162 Mass. 312. Thyng v. Fitchburg Railroad, 156 Mass. 13, 16. Mackin v. Boston & Albany Railroad, 135 Mass. 201. Ballou v. Chicago, Milwaukee St. Paul Railroad, 54 Wis. 257. Gutridge v. Missouri Pacific Railroad, 94 Mo. 468. But this contention does not appear to be supported by the evidence. If it may be inferred that the defendant’s original reception of this car from its owner was for the purpose of transportation and delivery to
But even if the defendant could be treated as having merely received this car from a connecting line for further transportation over a continuous route, yet, as the plaintiff was not its servant, it would be responsible to him for any negligence of its inspectors. This is the doctrine of Littlejohn v. Fitchburg Railroad, 148 Mass. 478. But there was evidence here that proper inspection would have discovered the loose and dangerous condition of this roof; and although the defendant’s evidence contradicted this, the question would be one for the jury, as in Lutolf v. United Electric Light Co. 184 Mass. 53, 57.
We think it plain that in this case a verdict could not have been ordered for the defendant, but that the question of liability was for the jury.
Nor can it be affirmed that there was error in what was said by the judge at the trial as to the happening of an accident like this, if unexplained, furnishing some evidence of negligence. It is the ordinary experience of mankind that the top roof of a
The fact that this car was the property of another company does not prevent the application of the rule stated. It was in the possession and under the control of the defendant, and used by the defendant for its own purposes. Beattie v. Boston Elevated Railway, 201 Mass. 3. Ladd v. New York, New Haven, & Hartford Railroad, 193 Mass. 359. Hale v. New York, New Haven, & Hartford Railroad, 190 Mass. 84. Foster v. New York, New Haven, & Hartford Railroad, 187 Mass. 21. Spaulding v. Flynt Granite Co. 159 Mass. 587. Although it was agreed that this was a foreign car, yet it was contended that the defendant was liable for it as for one of its own. It is not too much to say that prima facie there was a duty upon the defendant to see that the roofs of cars in its own trains should not blow off to the injury of people rightly in the neighborhood, like the duty to see to it that their trains did not come apart while in motion. Thyng v. Fitchburg Railroad, 156 Mass. 13, 19. But this matter already has been sufficiently considered.
The fact that both the plaintiff and the defendant introduced evidence to show just what was the cause of the blowing off of this top roof was properly called to the attention of the jury. They were told that if the accident was explained, if they were satisfied as to its cause, then they must take all the facts and
2. In the second action, brought to recover for the death of the plaintiff’s intestate, it is not necessary to say anything more upon the defendant’s exception to what was said by the court as to the happening of the accident, if unexplained, furnishing some evidence of negligence. The most important question is whether there was sufficient evidence to warrant a finding of gross negligence of the defendant’s agents or servants, or whether a verdict should have been ordered for the defendant. These questions, and the refusal of the presiding judge to give the defendant’s ninth and tenth requests for instructions, are all that now need be considered.
The defendant’s counsel have earnestly argued that even on the doctrine of res ipso loquitur, gross negligence could not be inferred from the mere happening of the accident. But no such ruling was made by the judge. He carefully and plainly distinguished gross negligence from ordinary negligence, and allowed the plaintiff to recover upon this ground only if it was found that the defendant’s inspectors had not merely failed to use ordinary care in examining this car, but that they had been grossly negligent. The only question as to this part of the case is whether there was evidence upon this issue for the jury. We are of opinion that there was such evidence. The jury could find upon the testimony put in by the plaintiff that this top roof was in such condition that wind could get in between it and the
The judge also left it to the jury to say whether the defendant itself had been guilty of negligence as to its system of inspection ; but no specific exception was taken to this, and we need not consider the evidence that bore upon this question.
The defendant’s ninth and tenth requests were refused rightly. It was a question of fact whether the loss of the missing part of the fascia board, under the existing conditions of the weather, and in connection with what else ought to have been discovered upon proper inspection, would be likely to involve danger of the blowing off of the top roof of the car; and it was for the jury to say whether the defendant’s inspectors were grossly negligent in allows ing the car to proceed without having been repaired. Moreover the judge could not be required to rule upon the effect of specific
It follows that the defendant’s exceptions in the first two cases must be overruled, and it is ’
„ , , So ordered.
3. In the third and fourth cases, the defendant rested at the end of the plaintiff’s case, and the considerable body of evidence afterwards introduced by the Boston and Maine Railroad cannot be considered. Under these circumstances, many of the questions discussed by counsel in their elaborate arguments do not properly arise.
The occurrence of the accident raised no presumption against this defendant because the car was not at the time in its possession or control; and the doctrine of res ipsa loquitur is to be applied only against a party who by himself or his servants had at the time the control and management of the appliance or instrumentality whose failure or defective condition was the cause of the accident. Kendall v. Boston, 118 Mass. 234, 236. Wolf v. American Tract Society, 164 N. Y. 30. Schaller v. Independent Brewing Association, 225 Ill. 492. Johnson v. Walsh, 83 Minn. 74. Higgs v. Maynard, Harr. & Ruth. 581.
The defendant cannot be held on the ground that the cause of the accident was a secret defect in the car which might have been found to have been known to the defendant, and that the defendant with such knowledge delivered the car to the Boston and Maine Railroad for transportation over its lines. Louisville, New Albany & Chicago Railroad v. Bates, 146 Ind. 564. Moon v. Northern Pacific Railroad, 46 Minn. 106. As the plaintiff left the cases against this defendant, the purposes of its delivery to the Boston and Maine Railroad had been completed, and the latter road was using the car for its own purposes and against the rights of this defendant, as in Sawyer v. Minneapolis & St. Louis Railroad, 38 Minn. 103. The defendant had not authorized the use which was being made of this car, and cases like Jackman v. Arlington Mills, 137 Mass. 277, and Dalay v. Savage, 145 Mass. 38, are not applicable. This case therefore does not present the question considered in the cases from Indiana and Minnesota above referred to, as to which there has been considerable variety of decision. See, besides cases already cited, Glynn
Nor could this defendant be found to be jointly liable with the Boston and Maine Railroad, on the ground stated in Feneff v. Boston Maine Railroad, 196 Mass. 575, 581. There was here no concurrent negligence of the two railroad corporations; the proximate cause of the injury and death of the plaintiff’s intestate, as the case was left by the plaintiff’s evidence, was the negligence of the Boston and Maine Railroad, for which this defendant was in no way liable.
No cause of action was shown against this defendant; and in each case the order must be
Exceptions overruled.
There was evidence that the car was inspected by three inspectors in the employ of the defendant, and that they “ upon inspection found no defect in the roof or anything connected therewith.”