Wood v. Locke

• Decision Date: 27 November 1888
• Citation: 147 Mass. 604,18 N.E. 578
• Parties: WOOD v. LOCKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 604

18 N.E. 578

WOOD

v.LOCKE.

Supreme Judicial Court of Massachusetts, Berkshire.

November 27, 1888.

Exceptions from superior court, Berkshire county; H.B. STAPLES, Judge.

Action of tort by Franklin Wood against Augustus W. Locke to recover damages for personal injuries. The plaintiff was in the employ of the Troy & Boston Railroad Company, and was injured in the North Adams yard of the Troy & Greenfield Railroad & Hoosac Tunnel, in consequence of his foot becoming caught in a defective or improperly protected frog in the track in the yard. The defendant was manager of the Troy & Greenfield Railroad & Hoosac Tunnel, and the Troy & Boston Railroad had a right by contract to run its trains over the tracks in the yard of the Troy & Greenfield Railroad & Hoosac Tunnel. The superior court ruled that the action could not be maintained, and the plaintiff excepted.

A.W. Preston and M.E. Couch, for plaintiff.

Geo. A. Torrey for defendant.

W. ALLEN, J.

The plaintiff knew the condition of the tracks, and the danger attending their use, and voluntarily assumed the known risks of his employment upon them. Pingree v. Leyland, 135 Mass. 398;Moulton v. Gage, 138 Mass. 390;Leary v. Railroad Co., 139 Mass. 580, 2 N.E.Rep. 115; Taylor v. Manufacturing Co., 140 Mass. 150, 3 N.E.Rep. 21; Railroad Co. v. McCormick, 74 Ind. 440. It does not make in the plaintiff's favor that he was not in the employment of the defendant, but in that of the Troy & Boston Railroad Company, a corporation that was authorized to use the tracks. Whatever the obligations of the defendant may have been under the contract with that company, he was under no greater obligation to its servants to furnish a suitable road for them to work upon than he was under to his own servants. The plaintiff, in going to work upon the tracks at the invitation of the defendant, contained in the contract with the Troy & Boston Railroad Company, assumed, as against the defendant, the obvious and known risks of the employment, arising from the defective construction or condition of the road, as fully as if he had gone upon the tracks under a contract with the defendant as his servant. A majority of the court are of opinion, for these reasons, that the entry must be: exceptions overruled.