Trask v. Old Colony Railroad, 156 Mass. 298

Trask v. Old Colony Railroad

156 Mass. 298 | Mass. | 1892

Morton, J.

Without considering the question of due care on the part of the plaintiff’s intestate, we think it cannot be held that the defect in the track of the Boston and Maine Railroad was a defect in the ways, works, and machinery of the defendant. It may not be necessary, in order to render an employer liable for an injury occurring to an employee through a defect in the ways, works, or machinery, that they should belong to him, but it should at least appear that he has the control of them, and that they are used in his business, by his authority, express or implied. Roberts & Wallace, Em*304ployers’ Liability, (3d ed.) 249, 250. Neither the employer not any person in his service can be justly charged with negligence as to matters over which they have no control. The phrase, “ connected with or used in the business of the employer,” (St. 1887, c. 270, § 1, cl. 1,) cannot be taken literally, but when used in connection with ways, works, and machinery must be understood to mean ways, works, and machinery connected with or used in the business of the employer by his authority, and subject to his control. It is expressly stated in the report, that the track of the defendant company was maintained and kept in repair by it, and that the track of the Boston and Maine was kept in repair by that company, and that the defendant had nothing to do with maintaining and repairing the track of the Boston and Maine.

It therefore appears that the defendant had no authority or control over the tracks of the Boston and Maine. Sometimes, from the position of the cars, the defendant was obliged to go upon the track of the Boston and Maine to get them, though generally it could fasten to them without going on that track. The occasional use by each company of the track of the other, in delivering and taking cars in the course of business, would not, to that extent, make the track of each a part of the ways, works, or machinery of the other. It was permitted for their mutual accommodation, and was merely a license which did not give either any rights in or control over, and which did not impose upon either any obligation respecting the track of the other. The character of the business transacted is to be considered, and it would be unreasonable to hold that each company was bound to leave and take cars at the precise point of connection, at peril, if it did not do so, of making the track of the other part of its ways, works, and machinery, and of becoming liable for injuries resulting from any defect in it.

Judgment on the ver diet for the Union Freight Railroad Company.