187 Mass. 5 | Mass. | 1904
[After the above statement of the case.] The defendant seeks to support the ruling on two grounds : first, that there was no evidence of due care on the part of the plaintiff, and second, that the cause of the accident was on the evidence a matter of conjecture and no negligence on the defendant’s part was shown.
But we are of opinion that these contentions cannot be maintained.
1. The place in question was not a railroad yard where ears were continually going back and forth. It was a single spur track, leading off the main line, devoted to loading freight cars, at what appears to be a small country station of the defendant’s railroad, and at the time of the accident there was neither any employee of the railroad company nor any other person in the neighborhood. Under these circumstances the plaintiff was not as matter of law lacking in due care in walking between the rails while pushing the car in question to the place where it was
2. We are of opinion that the jury were warranted in inferring that the car which was left without the brake being set and which ran down upon the plaintiff was put in motion down the grade by the high wind which then was blowing. The case comes within such cases as Cox v. Central Vermont Railroad, 170 Mass. 129, and not within such cases as Kendall v. Boston, 118 Mass. 234, and Wadsworth v. Boston Elevated Railway, 182 Mass. 572. We also are of opinion that to leave a car with the brakes not set, at the top of a down grade on a spur track on which it is the practice for shippers to move cars by hand, is an act of negligence. The only doubt we have had is this: The plaintiff testified that the brakes were set on the first car which Porter and his employees moved south on this spur track, that there were no brakes set on the second car brought down by them, and that Porter and his men let off the brakes on the first car when they brought it down. But if it be assumed that the setting of the brakes on the first car next to the grade was a sufficient protection against all the cars behind it running down the grade, the defendant knew that there was a grade at this point and it also knew the practice then existing for the local agent to leave it to shippers to move the cars to the desired place, and knowing this it was negligent to leave this car at the top of the grade with the brakes not set, as against a shipper or the employee of a shipper who, from ignorance of the existence of the grade, might move the first car and thus be exposed to the danger from which the plaintiff suffered.
Exceptions sustained.
