Dodge v. Boston & A.R. Co.

• Decision Date: 14 January 1892
• Parties: DODGE v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 448

29 N.E. 1086

DODGE v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 14, 1892

COUNSEL

E. Greenhood and C.H. Sprague, for plaintiff.

S Hoar, for defendant.

OPINION

ALLEN J.

Some gravel-cars loaded with stone were coming towards another car, also loaded with stone, which was standing by itself and as they came together the plaintiff undertook to couple them, and the brake upon the stationary car was not set, and the car moved along some three or four feet, and the plaintiff, in endeavoring to walk along between the cars, was hurt, and seeks to recover damages of the defendant. The brake-head on the stationary car had been broken, and was wanting, so that the brake could not be set when the car was left by itself. The plaintiff testified that he did not consider such a car dangerous to use when it is in the middle of a train, because it can be controlled by the brakes on the other ycars. The danger consisted in its being separated from the other cars and left alone, so that it might start if the other cars were moved up against it. He testified further that usually, if the brake cannot be set when making up a train they manage to keep that car with the engine, or coupled with other cars, or, if the car is to be left by itself, the men trig the wheel with a sleeper or something, so that it could not move backward or forward. These cars were employed in hauling out stones from a stone-pit, some of the cars containing stones for building and others stones to be used for filling; and all were taken indiscriminately from the stone-pit out upon the main track, and there assorted, those containing the stones for building were picked together, so as to make a separate train, and those containing the other kind were similarly dealt with. It was no uncommon thing for the cars to need repairs, and the plaintiff testified that he had known some brake-heads to be broken during the six weeks that he had worked there. The cars were never sent away for repairs, but were repaired there or in that immediate vicinity, by a man employed for that purpose, who for two weeks prior to the accident to the plaintiff had been coming there twice a week, but before that every day. This man was busy most of the time while there, but some of the time was not doing anything. There was nothing to show that the exigencies of the work required him to be there oftener than twice a week. If a car became obviously so out of repair as to be dangerous to use during his absence, it was the duty of the workmen using it to set it aside until he came. This being the known method adopted for the repair of the gravel-cars, we have to consider wherein the supposed negligence of the defendant consisted. No evidence was offered to show that this method was unreasonable in itself. Some cars would naturally be broken in the process of loading, which was done by...