Austin v. Boston & M.R. Co.

• Decision Date: 09 September 1895
• Citation: 164 Mass. 282,41 N.E. 288
• Parties: AUSTIN v. BOSTON & M.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 282

41 N.E. 288

AUSTIN v. BOSTON & M.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

September 9, 1895

COUNSEL

Samuel C. Darling, for plaintiff.

Solomon Lincoln, for defendant.

OPINION

MORTON, J.

We do not see how this case can be distinguished from Lovejoy v. Railroad Co., 125 Mass. 75, Thain v. Railroad Co., 161 Mass. 353, 37 N.E. 309, and Goodes v. Railroad Co., 162 Mass. 287, 38 N.E. 500. The plaintiff had been employed as a freight brakeman on the Rockport freight for two years or more, and had had occasion to go by this post nearly or quite every day. The post was only one of many structures as near to the track as it was, and the plaintiff must be held to have taken the risk of injury from its proximity to the track, whether he actually knew of the danger or not. The slight sagging of the post towards the track, of which there was evidence, is not shown to have had anything to do with the injury to the plaintiff. Judgment for defendant.