Boyle v. New York & N.E.R. Co.
| Decision Date | 26 February 1890 |
| Citation | 151 Mass. 102,23 N.E. 827 |
| Parties | BOYLE v. NEW YORK & N.E.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles F. Donnelly and S.B. Allen, for plaintiff.
H.E Bolles and R.M. Saltonstall, for defendant.
This is an action for causing the death of the plaintiff's intestate. The case was tried by the judge below without a jury. He found the facts specially, and ruled that upon them the plaintiff was not entitled to maintain his action. If this ruling was correct, it is unnecessary to consider whether the rulings asked for the plaintiff were correct or not. The facts, briefly stated, were that the plaintiff's intestate was conductor of a switching crew in the defendant's yard, having charge of all movements of cars within or about the yard; that while acting as such on May 18, 1886, between 5 and 6 o'clock in the afternoon, and attempting to couple two cars in the usual course of business, his head was struck by a projecting piece of timber upon the moving car, and he was killed. The car was 30 feet long. The piece of timber was 32 feet and 4 inches long, and projected 13 inches beyond one end, and 15 inches beyond the other end, of the car. The cars were loaded and handled in the usual way. The plaintiff's intestate was experienced in his business and knew the usages of the yard.
The case is governed by Lothrop v. Railroad Co., 150 Mass. ----, 23 N.E. 227, (decided since the case was argued.) That case was like this, except in the particular that there the plaintiff had whatever advantage was to be gained from St.1887, c. 270, so far as it modifies the common law as to the risks assumed by the servant and the negligence of fellow-servants. Mellor v. Merchants' Manuf'g Co., 150 Mass. ----, 23 N.E. 100. Here there can be no doubt that the risk was assumed by the plaintiff's intestate, so that, even if his conduct was not negligent in the sense of "culpable," still, as it involved danger manifest to him, he could not complain of the consequences, or argue, as it might be argued, perhaps, in some cases, under the act of 1887, that, if he acted under the fear of losing his place, he did not act at his own peril, unless a jury found him to have been culpably careless. Furthermore, if there was any negligence other than his own, which we are far from intimating, it was that of his fellow-servants. See Hodgkins v. Railroad Co., 119 Mass. 419; Yeaton v....
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