216 Mass. 129 | Mass. | 1913
The deceased met his death in consequence of having been caught between two cars which were standing respectively upon tracks numbered two and three in the defendant’s freight yard. These were “ repair tracks,” upon which were placed only cars that needed repairing. They were intersecting tracks. There was a practice in the yard, when cars were shunted upon these or other intersecting tracks, to place them, not close to the point of intersection, but at a sufficient distance therefrom to leave room for a man to pass between the cars; and it could be found that this was intended, partly at least, for the safety of men working upon or near to the cars, so that one of the difficulties encountered in Porter v. New York, New Haven, & Hartford Railroad, 210 Mass. 271, 274, does not stand in the way of these plaintiffs. The deceased in the proper performance of his duty had gone between the tracks and between the two cars for the purpose of coupling one of them to a train that-it might be moved out of the way. Accordingly the jury could find that he had a right to act upon the assumption that the cars had been properly placed and that there was room for him to go between them as he needed to do, and that it was not negligent for him to do this without stopping to ascertain whether they were in fact placed far enough away from the intersection of the tracks to afford him sufficient room. Mackenzie v. New York Central & Hudson River Railroad, 211 Mass. 586. Parmelee v. New York Central & Hudson River Railroad, 215 Mass. 294. There are circumstances in the case at bar which differ from those of the cases cited; but there is nothing which requires as matter of law the application of a different rule.
There was evidence of negligence for which the defendant could be held liable in placing the car on track number 3 too near to track number- 2. Parmelee v. New York Central & Hudson River Railroad, supra. Dacey v. Old Colony Railroad, 153 Mass. 112. It has not been argued that as to this there was a variance between the declaration and the evidence; and we have not considered whether such a contention could have been sustained.
Exceptions sustained.
