Bence v. New York, N.H. & H.R.r.

• Decision Date: 03 April 1902
• Citation: 63 N.E. 417,181 Mass. 221
• Parties: BENCE v. NEW YORK, N.H. & H. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 221

63 N.E. 417

BENCE v. NEW YORK, N.H. & H. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1902

COUNSEL

John W. Corcoran and W. B. Sullivan, for plaintiff.

Chas F. Choate, for defendant.

OPINION

LATHROP J.

This is an action of tort by a person who is described in the writ as of New London, in the state of Connecticut, against a Connecticut corporation, having a usual place of business in this commonwealth, for an injury sustained by him in Connecticut. We assume, for the purposes of the case, that the court has jurisdiction, and that the plaintiff is entitled to recover if he could have recovered in Connecticut. Walsh v. Railroad Co., 160 Mass. 571, 36 N.E. 584, 39 Am. St. Rep. 514. We further assume that the plaintiff was in the exercise of due care.

The accident occurred in the defendant's freight yard at New London at 4 o'clock in the morning of November 6, 1895. In this yard were two main tracks, and east of them were three side tracks, numbered, respectively, 5, 6, and 7. There were also four other side tracks. Tracks 6 and 7 united at a switch and frog, and further along joined 5, and then ran into one of the main tracks. The plaintiff had been in the employ of the defendant for four years. During this time he had worked all around this yard and another one across the river. He was familiar with both yards, and was the most experienced man in the crew to which he belonged, except the conductor. For three years before the accident his work was at night. During the time he was at work in the yard there had been no change in the position of the tracks, although for the last two years before the injury all of the tracks had been very crowded, and there had been two switching crews at work night and day. The train on which the plaintiff was the rear man had backed down on track 7 to couple onto one or more cars. The conductor and the plaintiff were on the ground. The signal was given to start ahead. There was a ladder on the end of the last car, and grab handles on the side, and also a step. The conductor got on first. Then the plaintiff swung onto the step, and reached around and took hold of the ladder. While in this position we assume (although this is not very clear on the evidence) that he was struck by a car which had been left standing on track 6, too near the junction of the two tracks. The first count of the plaintiff's declaration goes upon the ground that the defendant was negligent in so leaving the car on track 6. At the trial the contention was that one Dunn, the yard master who had general charge of the yard, was the person thus guilty of negligence; and, to take the case out of the rule of fellow servants, it was contended that in Connecticut a servant ant who had control and direction over other servants was regarded as a vice principal, for whose negligence the general employer would be responsible. To prove the Connecticut law on this subject, the plaintiff put in evidence the cases of Wilson v. Linen Co., 50 Conn. 433, 47 Am. Rep. 653; Darrigan v. Railroad Co., 52 Conn. 285, 52 Am. Rep 590; McElligott v. Randolph, 61 Conn. 157, 22 A. 1094, 29 Am. St. Rep. 181; Gerrish v. Ice Co., 63 Conn. 9, 27 A. 235; and the testimony of Mr. Waller, an attorney at law practicing in Connecticut. We do not think that Mr. Waller's testimony adds anything to what appeared in the cases put in evidence, for he testified: 'I think that the law on this point is completely stated in those four cases. I think those four cases are the cases that constitute the Connecticut authority on this point.' Nor do we deem it necessary to consider these cases at length. It is enough to say that they show that, while the rule of fellow servants prevails in Connecticut, one who exercises control over another is not regarded as a fellow servant, but as a vice principal. The question remains whether there was negligence on the part of Dunn. An examination of the evidence fails to disclose any. There is no evidence in the case to show who put the car that did the injury so near the switch that the plaintiff could not pass in safety, nor how long it had remained there. Nor does it appear that it was not placed there by one who in Connecticut would be regarded as a fellow servant. The plaintiff testified that, while the crowded condition of the yards existed, he never saw any cars the way they were then. So that it was not a customary thing to place cars on a side track so near another track that they would do injury. The plaintiff further testified: 'He had seen Dunn once or twice a week in the different yards, giving directions about where cars were to be moved. Of course, they were moving cars every day, and making a great many moves every day, and there were a great many moves of cars that Dunn did not direct at all. A great deal of the time the switching gang would place cars as the conductor said, or as the men left them. What Mr. Dunn did was, if he wanted particular cars placed in particular places, he would say so, or, if he wanted particular cars, he would say so. Other than these particular instances, the men would go about their work, doing it in the ordinary way they were accustomed to,--pulling cars in and pushing them out, making up trains, and moving cars about. In such a case as this, for instance, if the last car was cut off, and the plaintiff had ridden it down, he would have got some general direction from the conductor on what track it was going, and he would ride it down, and leave it in such place as he thought proper. That was the way the work was ordinarily done.' On this evidence, we do not see how any negligence can be imputed to Dunn, and the plaintiff has failed to sustain his proposition that the placing of the car on track 6 was the direct result of the exercise of authority, and was not the act of a fellow servant. It is...