Hannah v. Connecticut River R. Co.
| Decision Date | 24 October 1891 |
| Citation | 28 N.E. 682,154 Mass. 529 |
| Parties | HANNAH v. CONNECTICUT RIVER R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bassett & Keating, for plaintiff.
Wells McClench & Barnes, for defendant.
It was a question of fact for the jury whether the place where the plaintiff was injured constituted a defect in the road-bed and whether its existence was due to the negligence of the defendant. There was testimony tending to show that it had been there a week or more, and looked as though it had been dug out for a drain, and that there was a larger space between the switch-rod and the ground than at any other switch in the yard. There was also testimony tending to show that the distance between the switch-rod and the ground was about 51/2 inches, and that the distance was about the same between the switch-rod and the tie. Some of the witnesses spoke of it as a hole, and evidence was introduced, without objection, that after the accident, and before the trial, it was partially filled up and repaired, so that the distance between the switch-rod and the ground was made considerably less than at the time of the accident.
It is true that the railroad company was not bound to have the distance between the switch rod and the ground the least that would admit of the working of the switch, but it was required to use reasonable care in seeing that the place was such that those of its employes who might have occasion to pass over it in the discharge of their duties could do so with safety, provided they themselves were in the exercise of due care. It was for the jury, upon all the evidence, to say whether the railroad company had fulfilled this duty, and whether the situation in which the ground was left under and around the switch-rod and between the rails constituted a defect in the road-bed. The jury must have found that the defendant had not performed its duty, and that the road-bed was defective, and we think there was evidence that would warrant the findings.
It was also a question for the jury whether the plaintiff was in the exercise of due care. It was for them to give such weight as they thought it fairly deserved to the testimony relating to his familiarity with the yard and with the switch when the accident occurred and its condition; to that relating to the manner in which he attempted to uncouple the cars, and to the reasons given by him for going between the cars and walking between the rails; to the testimony of the yard-master as to what he told the plaintiff about going between the cars; and to other matters which apppeared in evidence on the one side or the other. Even if the plaintiff had known of the existence of the hole, it was not conclusive evidence of a want of due care on his part for him to get into it if that happened while he was in the discharge of his duty, and while his attention was directed to the work in which he...
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