Leary v. Boston & A. R. Co.

• Decision Date: 25 June 1885
• Citation: 139 Mass. 580,2 N.E. 115
• Parties: Daniel Leary v. Boston and Albany Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 580

2 N.E. 115

Daniel Leary v. Boston and Albany Railroad Company

Supreme Judicial Court of Massachusetts

June 25, 1885

Argued March 20, 1885 [Syllabus Material] [Syllabus Material]

Suffolk.

Tort for personal injuries occasioned to the plaintiff while in the employ of the defendant. Trial in the Superior Court before Knowlton, J., who allowed a bill of exceptions, in substance as follows:

On April 2, 1883, the plaintiff was working temporarily as a fireman on a locomotive in the defendant's freight yard and, in attempting to get off the locomotive, fell or was thrown under the wheel, and received the injuries complained of.

There was evidence tending to show the following facts: The locomotive was one of several used in the freight yard to shift freight cars and make up trains; and, for this purpose, moved frequently back and forth in the yard, which was provided with many tracks, sidings, frogs, and switches. The locomotive was liable to be, and in fact was, frequently jolted in passing over the frogs, switches, and cross tracks. The plaintiff had been in the employ of the defendant from April, 1880; and, until about five weeks before the time of his injury, worked solely as a freight truckman, loading and unloading cars and shifting freight in the defendant's freight-houses. The locomotive was managed and run ordinarily by an engineer and fireman; but daily, in order to keep the locomotive at work, a substitute was added during the absence of the engineer or the fireman at dinner; that is, when the fireman was at dinner a substitute took his place, and when the engineer was at dinner the latter's place was taken by the fireman, whose place in turn was taken by the substitute. One Stewart, the foreman of one of the freight-houses, had, with the knowledge of the defendant, been accustomed to detail one of the freight truckmen to act as such substitute. About five weeks before the plaintiff's injury, he was directed by Stewart to go on the locomotive as such substitute during the dinner-time.

At this time, there was a conversation between the plaintiff and Stewart, as to which the plaintiff testified as follows: "Stewart came to me and told me that I would have to go into the engine, and work noontimes firing, while the engineer and fireman were at dinner. I told him I did not know anything about an engine, and did not want to have anything at all to do with it. He told me the engineer would show me what to do. I told him that did not make any difference, I was afraid of going on, and he could send somebody else who knew something about it; so I did not go that day and he did send another man that day; and a day or two after, I don't know which, he came again and said I would have to go on the engine. I said, 'I told you before, I did not know anything about firing on an engine, and I would not have anything to do with it.' He told me I would have to go, to go ahead and give him no more talk; and I was afraid of losing my work, and I went on the engine." The evidence as to this conversation was contradicted by Stewart.

The plaintiff further testified, that from this time until his injury, five weeks later, he went on the locomotive during dinner-time about twenty times; that, a short time before his injury, and during the five weeks, he was without employment for one week on account of work being slack; that, on his return to work, "I came back and worked till noon in the freight-house, and when the horn blew at twelve o'clock, Stewart asked me why I would not go on the engine. I told him Bowen had gone already. He said, 'You are all the time growling about going on the engine, so go ahead and send that man back again.' I did go, and the engine was in the engine-house to take water. Bowen was there, and I told him my order, and he went back and I went on the engine."

The evidence was conflicting as to whether the plaintiff replaced Bowen at the locomotive on the day of the injury, or a week or ten days earlier.

The plaintiff also testified as follows: "I went on the engine at twelve o'clock on the second day of April, and the fireman was on the engine before me; the engineer was off. The fireman had charge of the engine, and as I went on the engine he was hitching on to some coal cars, and he started just to back out as I got on the engine; he told me to get off again and fill my pipe and take a smoke, so as to have it ready for him; to go into the engine-house to smoke. I did not go, and he backed out towards the gate and the crossing, and I took hold of the bell-rope and rang the bell. We were working towards the gate, and he turned round and took the bell-rope out of my hand, and he told me to go ahead and do as he ordered me to do and bring that pipe; and then I went out and stepped down on the footboard; I thought the engine was going to pause for me to jump off, and I remained on the footboard waiting for the engine to slacken up; and in place of slackening up she went faster, and I was jolted up by the roughness of the tracks; I was jolted off the step, and I fell down, and my leg got mangled up. When on the footboard I stood on my right foot, the left being unsupported, holding with my right hand to the iron rail of the engine."

On cross-examination, the plaintiff testified that he had worked on the engine about twenty days; and that, when he got upon the footboard, the engine was going so fast he thought it was not safe to get off.

No one saw the plaintiff fall. Stewart testified that he saw him fifteen seconds before he fell; that he was then descending or ascending (he did not know which) the outside of the locomotive with his back towards the direction in which the locomotive was moving; that the locomotive was going slowly, "just moving," and that the plaintiff fell near to a switch. One Golding, the fireman, testified that the locomotive was going about as fast as a "slow walk" when he saw the plaintiff lying on the ground.

The plaintiff further testified, that he worked from one to three hours a day on the engine; and that, in getting on and off, he used the same step from which he fell; and, on cross-examination, that he did not get off the engine at all after he got on, until he got off for dinner; that he never got off the engine at any other time when it was in motion except when it was nearly at a standstill; that the engine, while he was working on it, was engaged in shifting cars, moving up and down the tracks, around different places, and going over switches, sometimes going up to the new yard, a mile away, and hauling down a string of cars; that he used to observe a jolting of the engine as he stood in the cab; that the only instructions or directions which he got from the engineer or fireman with regard to the locomotive or tender were to shovel in some coal, to put on the blower or turn it off, or to sweep out the cab, and to ring the bell; and that the engineer gave him no instructions further than to tell him what to do.

There was evidence which would have warranted the jury in finding that the plaintiff lived, during the first nineteen years of his life, upon a farm in Ireland distant several miles from any railway; that, during his life in Ireland, he had ridden upon railway cars but three times; that about January, 1880 he came to this country, being then nineteen years old; that he worked in Boston for a few weeks as a laborer, handling coal, and then, in ...