White v. Fitchburg R. Co.

• Decision Date: 05 January 1884
• Citation: 136 Mass. 321
• Parties: Abram White v. Fitchburg Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 321

Abram White v. Fitchburg Railroad Company

Supreme Court of Massachusetts

January 5, 1884

Argued November 20, 1883 [Syllabus Material]

Suffolk. Tort for personal injuries received by the plaintiff while a passenger on the defendant's railroad, with a count in contract for a breach of the defendant's contract to carry the plaintiff safely. Trial in this court before Field, J., who reported the case for the consideration of the full court, in substance as follows:

It was proved or admitted that, at the time of the alleged injury the plaintiff was a passenger in one of the defendant's cars; that he had purchased a ticket which entitled him to be carried therein from West Townsend to Boston; that the defendant owned a branch road leading from West Townsend, and joining with its main road at a place called Ayer Junction, which branch is called the Peterboro' and Shirley branch; that at Ayer Junction the defendant's road is crossed at right angles by another road, called the Worcester and Nashua Railroad; that this road connects with the defendant's road by certain side-tracks, laid from the former to the latter road on the side opposite to that on which the Peterboro' and Shirley branch joins the same. By a contract between the defendant and the Worcester and Nashua Railroad Company, it was agreed, in order to run a line from Worcester to Boston, that each corporation should provide two passenger cars for this line, that each should haul at each trip one or more of said passenger cars over its line, and that the fares received on this line should be equally divided between the two corporations, the cars hauled by each to be taken up by the train of the other at Ayer Junction. By long practice between the roads, the connecting of the cars was performed by coupling the same on one of the side-tracks leading from the Worcester and Nashua Railroad to the defendant's road. The defendant's car coming over the Peterboro' and Shirley Railroad towards Boston was backed up on one of said side-tracks, and, being left by the locomotive, remained there until the Worcester and Nashua train arrived at the junction. The Worcester and Nashua train disconnected from its train such car or cars as were to be drawn to Boston at a point about half a mile from the connecting side-tracks, and from which there was so descending a grade that the car would move, if started, by its own momentum; said car, with a brakeman of the Worcester and Nashua Railroad Company, proceeded on by its own impetus, and was afterwards directed by a switch on to the side-track, where it ran down towards, and was to be connected with, the defendant's car or cars, placed there for the purpose, by patent couplers. This process is called making a flying switch. On the day in question, the defendant's car, in which the plaintiff was riding, was backed up as usual on said side-track, and, while waiting there, the car from the Worcester and Nashua Railroad which was intended to be joined to the defendant's car came, under the direction of the brakeman of the Worcester and Nashua Railroad, and struck the Peterboro' and Shirley car, knocking said car forward four feet, (breaking the glass chimneys of some of the lamps,) from which collision, as the plaintiff alleged, he received the injuries sued for. It appeared by the evidence of the defendant's witnesses that, at some other times, the car sent over the flying switch had struck the stationary car with as much violence as upon the occasion of the accident, but no harm had ever resulted therefrom. No evidence was offered as to the condition and equipment of the car coming from the Worcester and Nashua Railroad, or as to which road, the Worcester and Nashua or the defendant road, the particular car belonged, except that there was a brakeman upon it belonging to the Worcester and Nashua Railroad. But it did appear that...