Caron v. Boston & A.R. Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation164 Mass. 523,42 N.E. 112
PartiesCARON v. BOSTON & A.R. CO.
Decision Date26 November 1895
COUNSEL

J.B. Carroll and W.H. McClintock, for plaintiff.

William H. Brooks, for defendant.

OPINION

MORTON J.

This case was submitted to the jury on the second, third, sixth and seventh counts in the plaintiff's declaration. The jury found for the plaintiff on the seventh count, which alleged that the plaintiff's intestate was injured by reason of the negligence of some person, who had charge or control of a certain train, in shifting it over upon the track where the plaintiff's intestate was at work. The count does not allege how, or in what manner, the shifting of the train led to the injury; but it was not demurred to. See Steffe v. Railroad Co., 156 Mass. 262, 30 N.E. 1137. The defendant contends that the plaintiff's intestate was not in the exercise of due care. There was evidence tending to show that he was the hind end man on the train of which Collins was conductor, and that it was his duty to make up the train, and put it together, and make the couplings. "If there was any place lacking a pin or a link, he was supposed to put it in," one of the witnesses testified. The last that was seen of him before the accident, he was going along towards the rear end of the train, with a pin and one or two links in his hands, and he was found at a place where there was a separation between the cars. There was nothing to show that he had any warning or knowledge that the cars which caused the collision were coming down the track, or that he could see them; and for aught that appears, he was engaged in the discharge of his duty when injured. Due care may be inferred from the absence of negligence as well as from positive acts of diligence. Mears v. Railroad Co., 163 Mass. 150, 39 N.E. 997; Maguire v. Railroad Co., 146 Mass. 379, 15 N.E. 904. From the place where he was found it does not appear that, if Caron had a lantern, the accident would or might have been prevented; and, so far as appears, there was no duty resting on him to see that there was a lantern at the end of the train that he was making up. We think that there was evidence which justified the jury in finding that he was in the exercise of due care.

The defendant contends further that the plaintiff's intestate assumed the risk. There was some testimony from which, perhaps, the jury might have found that it was customary to run cars in on the same tracks at the same time from both ends of the yard, while trains were being made up. And it would be reasonable to say that the defendant's intestate assumed the ordinary risks arising from that method of transacting the business. Lynch v. Railroad Co., 159 Mass. 536, 34 N.E. 1072. But we do not think that it fairly can be held that he assumed the risk of accident from cars which were sent in, as there was evidence tending to show that the colliding cars were moving at the rate of 10 or 12 miles an hour, and with such force as to throw off the track one car of the train which Collins and his men were making up, and to break the drawbars of others. Such a manner of doing the business would be unreasonable, and not within any risk which the plaintiff's intestate assumed.

The defendant also contends that the cars which were switched onto the track where Caron was working did not constitute a train at the time of the accident; that, if they did, neither O'Brien nor Desloury nor Mozier was in "the charge or control" of it, as the instructions of the court permitted the jury to find they were; and that, under the seventh count, the defendant could be held liable only in case the accident resulted from the negligence of some one person who had "the charge or control" of them in shifting the cars to the track where plaintiff's intestate was. It is not easy to define what, under all circumstances, would constitute a train, within the meaning of the statute. A locomotive, with one or more cars attached to it, with or without passengers or freight, in motion upon a railroad from one point to another by means of power furnished by the locomotive, would undoubtedly constitute a train. Dacey v. Railroad Co., 153 Mass. 112, 26 N.E. 437. So it would if the steam was shut off from the locomotive, and the train was moving by its own momentum. Whether a single car, under such circumstances, would constitute a train, or whether a number of cars coupled together and at rest would constitute one, we need not now consider. The word "train," as used in the railroad act (Pub.St. c. 112), generally signifies cars in motion. Usually the power would be furnished by a locomotive. But whether a number of cars coupled together and in motion, and forming one connected whole, do or do not constitute a train, does not depend, we think, upon whether a locomotive engine is attached to them at the time, and they are moved by the power thus supplied. The liability to accident for which St.1887, c. 270, was designed to furnish a remedy would be the same in kind, though perhaps not so great in degree, whether the motive power was furnished by a locomotive attached to the cars or in some other manner. And it seems to us that a number of cars, coupled together as these were, forming one connected whole, and moving from one point to another upon a railroad, in the ordinary course of its traffic, under an impetus imparted to them by a locomotive, which, shortly before the accident, had been detached, constitute a train, within the meaning of St.1887, c. 270, § 1, cl. 3. See Devine v. Railroad Co., 159 Mass. 348, 34 N.E. 539; Cox v. Railway Co., 9 Q.B.Div. 106; Rob. & W. Employ. Liab. (3d Ed.) 300.

The next and more difficult question is whether either of the two brakemen or Mozier, the foreman of the switching gang, was in "the charge or control" of the train when the accident occurred. The words "the charge or control" do not seem to have received a final construction anywhere. In Gibbs v. Railway Co., 11 Q.B.Div. 22, Field, J., expresses a doubt whether the words "charge" and "control" are intended to mean different things. But in the same case in the court of appeal they seem to have been regarded as meaning different things (12 Q.B.Div. 208), though the point was not decided; and in Rob. & W. Employ. Liab. (3d Ed.) pp. 293, 294, that view was adopted. On the other hand, the implication of our own decisions, so far as they can be said to have given rise to one, is that they are to be regarded, not, perhaps, as synonymous, but as explanatory of each other, and as used together for the purpose of describing more fully one and the same thing (Davis v. Railroad Co., 159 Mass. 532, 534, 34 N.E. 1070; Lynch v. Railroad Co., 159 Mass. 536, 538, 34 N.E. 1072; Steffe v. Railroad Co., supra; Devine v. Railroad Co., supra; Donahoe v. Railroad Co., 153 Mass. 356, 26 N.E. 868; Thyng v. Railroad Co., 156 Mass. 13, 30 N.E. 169); and we think that this is the better construction. If "control" is one thing, and "charge" is another, then, inasmuch as to some extent every brakeman upon a train would have "control" of it, every employé injured by an accident resulting from the carelessness of a brakeman would have a right of action against the corporation which employed him, and the defense of common employment as to brakemen would be done away with, even though the brakemen might be acting under an immediate superior. The...

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