161 Mass. 353 (1894), Thain v. Old Colony R. Co.

• Citation: 161 Mass. 353, 37 N.E. 309
• Opinion Judge: HOLMES, J.
• Party Name: THAIN v. OLD COLONY R. CO.
• Attorney: [37 N.E. 309] Robert M. Morse and Charles E. Hellier, for plaintiff. J.H. Benton, Jr., for defendant.
• Case Date: May 18, 1894
• Court: Supreme Judicial Court of Massachusetts

Page 353

161 Mass. 353 (1894)

37 N.E. 309

THAIN

v.

OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1894

COUNSEL

[37 N.E. 309] Robert

Page 355

M. Morse and Charles E. Hellier, for plaintiff.

J.H. Benton, Jr., for defendant.

OPINION

HOLMES, J.

The plaintiff, an engineer employed by the defendant, was injured, while on duty, by being carried against a wooden post standing four feet from the track, and two feet from the tender beam, where the plaintiff was at the time. The post had been put up as a temporary support to Hogg bridge, Roxbury, about a week before, and the plaintiff testified that he did not know of it. The question is whether the judge was right in taking the case from the jury.

It is necessary for railroad companies to put up structures near enough to their tracks for it to be possible for persons on the trains to come in contact with them. Parallel tracks usually must be laid near enough to each other to create a similar danger between trains moving in opposite directions. A company is not bound to give warning of every such structure to every person employed upon its trains. There must be some point within the limit which it is possible for a man on a train to reach, at which the railroad company has a right to build without notice, and to assume that those on the trains will keep out of the way. Every one knows that there is danger as soon as he gets outside of the line of the train, when it is in motion. The plaintiff admitted it, and on that ground it is held that a passenger puts any part of his person beyond that line at his peril. Todd v. Railroad Co., 3 Allen, 18.

Page 354

We assume that the rule is not so strict in the case of employes whose duties may require them not to confine themselves within the same line at all times. Scanlon v. Railroad Co., 147 Mass. 484, 18 N.E. 209; Nugent v. Railroad Co., 80 Me. 62, 12 A. 797; Johnson v. Railway Co., 43 Minn. 52, 44 N.W. 884; Railway Co. v. Davis, 92 Ala. 300, 9 So. 252; Railroad Co. v. Russell, 91 Ill. 298. Graham v. Railway Co., 18 C.B.(N.S.) 229. It may be that they ought not to be held to take the risk of things four feet off, in all cases. But we are of opinion that the plaintiff took the risk of things at that distance. He was an experienced engineer, and knew this road as it was. He had passed the post in question daily for...