150 Mass. 423 (1890), Lothrop v. Fitchburg R. Co.

• Citation: 150 Mass. 423, 23 N.E. 227
• Opinion Judge: [23 N.E. 228]FIELD, J.
• Party Name: LOTHROP v. FITCHBURG R. CO.
• Attorney: [23 N.E. 227] A. Norcross, H.C. Hartwell, and C.F. Baker, for plaintiff. George A. Torrey, for defendant.
• Case Date: January 02, 1890
• Court: Supreme Judicial Court of Massachusetts

Page 423

150 Mass. 423 (1890)

23 N.E. 227

LOTHROP

v.

FITCHBURG R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

January 2, 1890

COUNSEL

[23 N.E. 227] A. Norcross,

Page 426

H.C. Hartwell, and C.F. Baker, for plaintiff.

George A. Torrey, for defendant.

OPINION [23 N.E. 228]FIELD, J.

This is an action brought under St.1887, c. 270, § 2, by the next of kin of a brakeman employed by the defendant, who was killed while engaged in shackling two cars loaded with lumber, upon the defendant's railroad.

The first question is whether there was evidence for the jury

Page 424

that the brakeman was "in the exercise of due care and diligence at the time." Section 1, Id. He was about 22 years old, and had been employed as freight brakeman by the defendant from October 26, 1887, to the time of his death, which was on February 3, 1888. It was a part of his duty, as freight brakeman, to shackle and unshackle freight-cars. Certain sticks of lumber on two open flat freight-cars standing on the defendant's track, about six feet apart, projected over the opposite ends of the cars. The engineer, in making up the train, backed it, with one of these cars attached at the rear, until this car came in contact with the other, to which it was to be shackled; and, in making the shackle, the head of the brakeman was caught between the ends of two projecting timbers, and he was instantly killed. This happened about noon, on a clear day. "The deceased made this shackling from the north side of the track, which was the side on which he was working, and from which he had made the other shacklings on this train. Upon the south side of said cars the lumber did not project, and there was nothing to prevent the deceased from crossing over, and making the shackling on that side." He was acting under the general orders of the conductor of the train to do the shackling on the cars standing on this track; but the conductor "gave him no special directions to make the particular shackle which caused the injury complained of, but such cars were a part of the cars standing on said track, and it was the duty of the deceased to do this particular shackle, under the aforesaid general orders of the conductor." The plaintiff's counsel admitted, at the request of the defendant, "that lumber and rails are frequently transported over railroads, with ends "projecting beyond the cars, but such is...