129 Mass. 268 (Mass. 1880), Holden v. Fitchburg Railroad Co.

Citation:129 Mass. 268
Opinion Judge:Gray, C. J.
Party Name:Henry C. Holden v. Fitchburg Railroad Company
Attorney:F. P. Goulding, for the plaintiff. G. A. Torrey, (T. K. Ware with him,) for the defendant.
Judge Panel:Gray, C. J. Ames & Soule, JJ., absent.
Case Date:September 16, 1880
Court:Supreme Judicial Court of Massachusetts

Page 268

129 Mass. 268 (Mass. 1880)

Henry C. Holden


Fitchburg Railroad Company

Supreme Court of Massachusetts

September 16, 1880

Argued October 1, 1878

Page 269

[Syllabus Material]

Page 270

Worcester. Tort for personal injuries sustained by the plaintiff while in the employ of the defendant corporation as a brakeman.

At the trial in the Superior Court at November term 1877, before Wilkinson, J., the plaintiff offered to prove the following facts:

Prior to June 1876, a public street in Fitchburg had crossed the defendant's railroad by a bridge resting on stone abutments, the railroad at that point passing through a deep cut. In June 1876, upon the petition of the defendant and others, the city council of Fitchburg discontinued a part of this street, including the part which crossed the railroad, and also laid out and extended another public street on the southerly side of the railroad as a substitute for the discontinued portion of the old street. This action of the city council was taken upon an agreement with the defendant that the latter would do all the necessary work in constructing the extended street, and effecting the discontinuance of the old street, and would pay all damages caused by the extending and discontinuance. In pursuance of this agreement, the defendant employed workmen, and proceeded to execute the work, some of which was within and some without the located limits of the railroad. The object of the defendant was to widen its railroad at and near the crossing, and to lay additional tracks.

At the time of the plaintiff's injury the defendant was engaged in widening its railroad at a point where it was crossed by the old street in Fitchburg, for the purpose of laying additional tracks. In the execution of the work, the defendant's workmen had occasion to use a derrick owned and furnished to them by the defendant, for the purpose of removing the abutments of the bridge, and for building a supporting wall to the newly extended street, and for building other walls partly within and partly without the located limits of the railroad. At the time of the injury, a portion of the abutments of the bridge had been removed, leaving the bank, consisting of earth and stones, on the north side of the track, and in plain view thereof, overhanging and projecting, and of a height of about seventeen feet. Several days before the accident, the workmen, in pursuance of the work, had set up the derrick on the north side of the track about on a level therewith, within four or five feet of the overhanging bank and within the located limits of the railroad. One guy was stretched across the track to the south side and there fastened, being of sufficient height when the derrick was upright to clear the passing trains. The other guys were fastened on the north side. The derrick was carelessly and negligently set up, the guys not being taut, and it was placed dangerously near the overhanging bank. The plaintiff did not contend that the derrick was not suitable for the work for which it was designed.

The day before the injury was warm, and the bank thawed, and it was obvious to any one who looked at it that a large mass of the bank was loosened, and liable to fall upon the derrick. The derrick had remained in the manner and position above described for a fortnight or more, and for ten days at least before the injury had not been used. The weather had been alternately thawing and freezing during that time. On December 15, 1876, a short time before the train on which the plaintiff was at work came along, a great mass of the bank broke off and fell on to the derrick, breaking it and knocking it down, and bringing the guy stretching across the railroad down in such a position that, when the train came along, it tore off the smoke-stack of the engine and swept over the tops of the cars, striking the plaintiff and causing the injury complained of.

The defendant employed a road-master who had charge of that portion and other portions of the railroad, and the general charge and supervision of the repairs and maintenance of the road-bed and tracks; but he had no charge of the work of altering this street, or removing these stone abutments, or digging for the additional tracks, and the men who were doing that work were not under his control. Within ten days before the injury, he passed over the railroad frequently, and knew or had reasonable cause to know the situation of the bank and derrick.

The defendant contended that, if these facts were proved, there was no evidence of negligence on its part; and that the negligence, if any, was that of fellow-servants of the plaintiff. The judge reported the case, by consent of the parties, before verdict, for the determination of this court. If, upon the above offer of proof, the plaintiff was entitled to go to the jury, the case was to stand for trial; otherwise, judgment was to be entered for the defendant.

Case stand for trial.

F. P. Goulding, for the plaintiff.

G. A. Torrey, (T. K. Ware with him,) for the defendant.

Gray, C. J. Ames & Soule, JJ., absent.


Page 271

Gray, C. J.

It is well settled in this Commonwealth, and in Great Britain, that the rule of law, that a servant cannot maintain an action against his master for an injury caused by the fault or negligence of a fellow-servant, is not confined to the case of two servants working in company, or having opportunity to control or influence the conduct of each other, but extends to every case in which the two, deriving their authority and their compensation from the same source, are engaged in the same business, though in different departments of duty. Farwell v. Boston & Worcester Railroad, 4 Met. 49. Bartonshill Coal Co. v. Reid, 3 Macq. 266. Morgan v. Vale of Neath Railway, 5 B. & S. 570, 736, and L. R. 1 Q. B. 149. Wilson v. Merry, L. R. 1 H. L. Sc. 326.

In Farwell v. Boston & Worcester Railroad, which has long been considered, both in this country and in England, the leading case upon the subject, Chief Justice Shaw, in delivering the judgment of the court, said: "The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and, in legal presumption, the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation

Page 272

as any others." 4 Met. 57. "The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer; but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow-servant does not depend exclusively upon the consideration that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments cannot create that liability, when it does not arise from express or implied contract, or from a responsibility created by law to third persons and strangers for the negligence of a servant." 4 Met. 60, 61.

In that case, the business of a railroad corporation, within the meaning of the rule, was defined to be "to construct and maintain a railroad, and to employ their trains of cars to carry persons and merchandise for hire;" 4 Met. 55; and it was held, that a railroad corporation was not liable to the driver of the locomotive engine of a passenger train for an injury sustained in consequence of the negligence of a switchman in the management of a switch. Upon the same principle, it has been held by this court, that an apprentice acting as fireman of a locomotive engine is a fellow-servant with those employed to construct switches on the tracks of the railroad; King v. Boston & Worcester Railroad, 9 Cush. 112; that a laborer employed to repair the road-bed, or a carpenter employed to repair bridges and fences and to do like work on the line of the railroad, is a fellow-servant with those in charge of the train by which he was being carried to his place of labor; Gillshannon v. Stony Brook Railroad, 10 Cush. 228; Seaver v. Boston...

To continue reading