188 Mass. 390 | Mass. | 1905
The plaintiff was tail-end brakeman on the night shifting crew in the defendant’s freight yard at Somerville, and was injured by having his right arm caught between two cars which came together while he was trying to cut off one of them from the rear of the train. The bumper, draw bar and end sills were gone from the car, which allowed it and the next car to come together. This action was brought for the injuries thus received. At the close of the evidence the judge, at the defendant’s request, directed a verdict for the defendant, and the case is here on exceptions by the plaintiff to this ruling.
We think that the ruling was wrong and that the exceptions should be sustained. It is not contended that the car was not in a defective condition. It had been examined by an inspector who had ordered it to be sent to the repair shop at Charlestown. It was taken from there to be sent to the repair shop at Fitch-burg, and at the time of the accident was in the freight yard at
The plaintiff further contends in regard to assumption of the risk that the case is governed by R. L. c. Ill, §§ 203, 209, which provide that “in moving traffic” between places in this Commonwealth a railroad corporation shall not haul or permit to be hauled or used on any of its lines a car which is not equipped with couplers coupling automatically by impact, and that an employee who is injured by any locomotive, car or train used contrary to these provisions shall not be deemed to have assumed the risk of such injury. But we deem it enough to say that the uncontradicted testimony shows that the damaged car was not being used “ in moving traffic ” but was being taken to a repair shop to be repaired. The case does not, therefore, come within the statute.
The conductor testified, amongst other things, that the car was not to be cut off and that he gave the plaintiff no orders to uncouple it. But there was testimony that the yard master in the plaintiff’s hearing had ordered it to be placed on another track, and from this and other evidence the jury would have been warranted in finding that the plaintiff was acting in the usual course of his employment in attempting to uncouple the car.
Exceptions sustained.