Olsen v. Andrews
| Citation | 168 Mass. 261,47 N.E. 90 |
| Parties | OLSEN v. ANDREWS. |
| Decision Date | 18 May 1897 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Gargan & Keating, for plaintiff.
Alfred Hemenway and Dickson & Knowles, for defendant.
At the close of the testimony the presiding justice ruled that there was no evidence to warrant a verdict for the plaintiff, and directed a verdict for the defendant. There was evidence that the plaintiff was in the exercise of due care. According to the testimony, all the men employed by the defendant boarded on the west side of the Hudson river, while their work was upon a bridge crossing the river, and a part of it at the east end of the bridge. The only way from the plaintiff's work to his boarding place was over the bridge on the northerly, or west-bound, track, which was given up by the railroad company to the defendant for his use while repairing the bridge. It was against the rules to ride on the derrick car, and he was obliged to walk. He had been to his dinner on the west side of the river, and was returning over the bridge, when the derrick car came up behind him, and ran over him. The engineer who was running the derrick car had been working with his car on or about the bridge at least five days, and may be presumed to have known that the men were accustomed to walk back and forth across the bridge at the dinner hour. The bridge was 60 or 70 feet above water. The southerly, or east-bound, track was used at the time by the railroad company for its trains going in both directions. When the plaintiff entered upon the bridge at the west end, there were four men crossing over before him. A freight train came behind him on the southerly track and was passing by his side, when the derrick car came up, so that it was impossible to step across to that track. When he saw the derrick car coming, it was moving at the rate of about 12 miles an hour, and he started to run as fast as he could towards the end of the bridge, and got nearly to the end of it, when the car overtook him. The only other thing that he could have done was to get down between the ties, and climb upon the timbers which constituted the frame of the bridge, and hold on there while the car passed above him. To do this quickly would have been difficult, and not free from danger. He well might suppose that the engineer running the car would check its speed until he could reach the end of the bridge, instead of running over him. He had every reason to believe that the engineer, before entering upon the bridge had looked ahead to see whether pedestrians were upon the track. If the engineer had looked seasonably, he could not have failed to see the plaintiff. It was not to be expected that he would deliberately run over a fellow workman, or that he would even expect one to get down under the track, and cling to the timbers, to save one or two minutes for those who were using the car. If the plaintiff thought himself in great danger, and acted under excitement, he may well be excused if he failed to adopt the best course.
We are of opinion that there was no evidence of negligence on the part of the defendant in failing to provide for the plaintiff some other mode of getting back and forth between his work and his boarding house, nor in failing to furnish a different kind of derrick car. The defendant owned and was using the car when the plaintiff entered his service. So far as appears, it was suitable for the use for which it was intended. The use of it, and the necessity of passing over the bridge, created obvious risks connected with the business in which the plaintiff was engaged.
The plaintiff contends that he was not in the defendant's service, and that he was not a fellow servant with the engineer at the time when the accident happened. He was upon the bridge which his employer was repairing, and on which he was engaged to work. Although he was not working, but only returning to his work at the end of the bridge, we think that his use of the bridge was so far incidental to his service that in reference to risks growing out of the use of it by others engaged in the master's service he should be deemed to be a servant. We are of opinion that this contention cannot be maintained.
The plaintiff contends that, if they were fellow servants, there was evidence that the defendant was negligent in hiring the engineer, or in retaining him in his service. The evidence principally relied on to prove...
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Galentine v. Borglum
...is proper upon the question of his competency for his place if it is open and patent to the observation of the employer. Olsen v. Andrews, 168 Mass. 261, 47 N.E. 99. (11) The trial court did not comment on the evidence nor was any error made by the trial court as charged by the appellants u......
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