Ashton v. Boston and Maine Railroad

• Decision Date: 13 October 1915
• Citation: 222 Mass. 65
• Parties: CORA D. ASHTON, administratrix, v. BOSTON AND MAINE RAILROAD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 65

CORA D. ASHTON, administratrix, v. BOSTON AND MAINE RAILROAD.

Supreme Judicial Court of Massachusetts, Berkshire,

October 13, 1915

September 14, 1915.

Present: RUGG C.J., LORING, CROSBY, PIERCE, & CARROLL, JJ

Negligence Employer's liability: assumption of risk, Incapacity caused by continuous work without rest. Workmen's Compensation Act. Electricity. lf a workman of long experience in repairing electric wires, who is one of three men employed by a railroad corporation as the "emergency crew" in charge of the electric zone at a tunnel and is foreman over the other two, and whose duty it is to remedy defects in the electric wire system whenever they occur, goes upon a pole strung with wires carrying eleven thousand volts of electricity without following his ordinary practice of calling by telephone to have the power shut off and is killed by electricity by reason of the defective insulation of the wires, no action can be maintained against the railroad corporation for causing his death, because there is no evidence tending to show negligence on the part of that corporation toward its employee who agreed to perform the service of repairing the electric wires when they were defective.

The provision of the workmen's compensation act contained in St. 1911, c.

751, Part I Section 1, that an employer who has not become a subscriber under the act, when sued for the injury or death of an employee sustained in the course of his employment, cannot set up the defence that the employee had assumed the risk of the injury, does not prevent such employer from relying on the fact that the danger that caused the injury or death of the employee was one which he was hired to incur and that consequently the employer was under no duty to protect him from it.

In the present case it was pointed out that there were additional reasons why the plaintiff had failed to show negligence on the part of the defendant, because there was no evidence to show that any defect in the insulator caused the injury that resulted in the death of the plaintiff's intestate and no evidence that at the time of the accident the power was on upon the wire connected with the insulator that was alleged to have been defective.

Whether an employer can be held liable for causing the injury or death of an employee by reason of his continuous employment without rest so that he became physically and mentally incapable of taking care of himself, here was referred to as a question that never has been passed upon by this court.

In the present case, where the plaintiff's intestate was a foreman who apparently was permitted to choose his own hours of rest, provided his work was performed, and who, although until the night before the accident he had worked (with the exception of one interval of five hours) almost continuously day and night for three days and a half, on the night before the accident went to bed at half past six o'clock and slept about eleven and a half hours, it was held, that the jury would not have been warranted in finding that the intestate was in such a condition of mental or physical exhaustion as to be unable to look out for himself.

TORT by the administratrix of the estate of Miles T. Ashton, late of North Adams, for causing the death of the plaintiff's intestate on April 21, 1914, while he was in the employ of the defendant, the first count being for instantaneous death "owing to the negligence of the defendant, its agents and servants," and the second count being for causing the death of the plaintiff's intestate by alleged negligence in failing to shut off the power from the wires attached to the pole on which the intestate was engaged in the work of repairing the wires. Writ dated July 30, 1914.

In the Superior Court the case was tried before Hall, J. The evidence is described in the opinion. At the close of the evidence the plaintiff waived the second count of her declaration and consented that the case should be submitted to the jury on the first count only. On motion of the defendant the judge ordered a verdict for the defendant and reported the case for determination by this court, with a stipulation of the parties that, if the ordering of the verdict was wrong, judgment should be entered for the plaintiff in the sum of $3,000 with interest from May 13, 1915; and that, if the ordering of the verdict was right, judgment was to be entered for the defendant on the verdict.

The case was submitted on briefs.

J. F. Noxon & M.

L. Eisner, for the plaintiff.

D. Malone, for the defendant.

CROSBY, J. This is an action of tort, brought by the widow of Miles T. Ashton as the administratrix of his estate, to recover for his death. The plaintiff waived the second count of the declaration. The plaintiff's intestate was killed on April 21, 1914, while in the employ of the defendant as foreman of the "emergency crew" in charge of the electric zone, so called, at the Hoosac Tunnel. He had been a foreman in the defendant's employ from October, 1912, until the time of his death. He had worked for the Postal Telegraph Company for twenty-six years before he went to work for the defendant. The "emergency crew" consisted of the deceased and two other employees, Hebert and Davis. It was the duty of the deceased and the men under him to maintain and keep in repair the poles and electric wires situated within the electric zone, and the nature of the work was such that the hours of employment were more or less indefinite and irregular, as he was expected to do such work and make such repairs as from time to time might be required. The fatal accident occurred on Tuesday afternoon, about half past four o'clock. For some days previously there had been trouble with the electric wires, and the deceased and the men under him had been engaged in making repairs thereon.

There was evidence to show that on the Friday morning before he was killed he went to work at seven o'clock, came home to dinner at a quarter after twelve, and returned to work at one o'clock, returning home for his supper at a quarter of six on the same day; that at nine o'clock in the evening of that day he was called by telephone; that he said he was called for trouble on the railroad, and left his house at about a quarter after nine, and returned home at about two o'clock the next morning and remained there until about a quarter to seven...