Osborne v. Knox & L.R.R.

• Decision Date: 19 December 1877
• Citation: 68 Me. 49
• Parties: ABBIE OSBORNE, administratrix of Stephen Osborne, v. KNOX & LINCOLN RAILROAD.
• Court: Maine Supreme Court

68 Me. 49

ABBIE OSBORNE, administratrix of Stephen Osborne, v. KNOX & LINCOLN RAILROAD.

Supreme Judicial Court of Maine.

December 19, 1877

ON REPORT.

CASE for negligence. Stephen Osborne, the plaintiff's intestate the servant of the railroad corporation, and master of its ferry-boat, whose duty it was to transport the cars of the defendant company across the Kennebec river, between Bath and Woolwich, left the boat, which was lying at the wharf in readiness to transport the loaded freight cars from Woolwich to Bath, and, at the request of the conductor, unshackled the loaded cars by pulling the bolt which connected them with the others, and in doing so was caught between the bunters and crushed, and died from the effects thereof, some fourteen hours after. The allegation was, that the injury was occasioned through the negligence of the company in not providing suitable couplings for the cars, that they were not the safest then known and in general use; and that the cars were not provided with a sufficient number of brakemen, and that the engines and shifting cars were negligently moved against the loaded freight cars without warning to the intestate, and without any brakemen to apply the brakes, and were forced with violence against his body.

The plea was the general issue.

F Adams, for the plaintiff.

H Tallman & C. W. Larrabee, for the defendants.

APPLETON C. J.

This is an action of the case against the defendants to recover damages for their negligence by which the plaintiff's intestate was so seriously injured in attempting to remove a bolt for the purpose of uncoupling certain loaded freight cars, that he died in a short time afterwards.

The plaintiff's intestate was an employee of the defendant corporation, and the injury occurred while in their service.

If the injury was the result of accident solely, the defendants being without fault, the action is not maintainable.

If the injury was caused by the negligence or misconduct of fellow servants, the law is well settled that a servant thus injured cannot maintain an action against his master for such injury. Lawler v. Androscoggin Railroad, 62 Me. 463. Hodgkins v. Eastern Railroad, 119 Mass. 419. Sammon v. N. Y. & H. Railroad, 62 N.Y. 251.

Servants must be supposed to have the risk of the service in their contemplation when they voluntarily undertake it and agree to accept the stipulated remuneration. Plant v. Grand Trunk, 27 Up. Canada, Q. B. 78. Searle v. Lindsay, 11 C. B. N. S. 429. Gibson v. Erie Railway, 63 N.Y. 449.

It makes no difference in regard to the liability of the defendants that the plaintiff's intestate came into the service voluntarily, as to assist the defendants' servants in a particular emergency and was killed by their negligence, for by volunteering his services he could not have greater rights nor could he impose any greater duty on the defendants than would have existed had he been a hired servant. Degg v. Midland Railway, 1 Hurls. and Nor 773. The same rule of law is applicable if a servant, of his own motion at the request of a fellow servant, should undertake...