Parmelee v. New York Central & Hudson River Railroad, 215 Mass. 294

215 Mass. 294 | Mass. | 1913

Rugg, C. J.

This is an action to recover for the death of the plaintiff’s intestate while in the employ of the defendant as a freight brakeman. Just before the accident, which occurred on the afternoon of a June day, he and a fellow brakeman named Daly were charged with the duty of uncoupling two box freight cars from a switching engine and placing them on different tracks in the Cambridge freight yard. This involved also one brakeman getting on each car when it was switched, and setting the brake at the proper time. One of the cars was switched without incident. A flying switch was to be made of the remaining one. Daly was upon its top prepared to brake it when shunted by the locomotive. This was called “riding the car. ” It was the work of Parmelee to uncouple this car. He might have done this either by turning a lever while standing on the footboard of the locomotive, a place of safety so far as appears, or by putting his foot on the lower round of the ladder of the freight car and reaching for the lever from this position. Either way would have been proper although done while the locomotive and car were in motion. He was left to do this work in his own way, and chose to stand on the ladder of the freight car.' This was on the side and not on the end of the car. While standing thus he was caught between the car he was on and a coal car on the next track, so near that there was not room between the two for his body. If it had been necessary for him to “ride” the car in question, there can be no dispute on this record that it would have been proper for him to stand on the car. Daly was on the car ready to “ride” it, so there was no occasion for Parmelee to go on the car. But there is nothing to show whether Parmelee knew where Daly was. The whole case hardly requires the conclusion as matter of law that he was bound to know that Daly was in position to perform this duty.

The evidence varied as to the distance between the car on which Parmelee was and the coal car, from six inches to a foot or more. It does not appear that Parmelee had anything to do with placing the coal car or knew or ought to have known from previous observations its proximity to the track on which he was working. The degree of intentness with which he attended to the work in hand would to that extent divert his thought from objects on other tracks. Although the case is close on this point, we think his due care was for the jury.

There was evidence of negligence on the part of the servants of the defendant in leaving the coal car so near to the converging track on which Parmelee was working as to make it dangerous for him to perform his duty. In this respect the case is indistinguishable from Dacey v. Old Colony Railroad, 153 Mass. 112, and Mackenzie v. New York Central & Hudson River Railroad, 211 Mass. 586.

In accordance with the terms of the report let the entry be

Judgment for the plaintiff for $8,000.