Brady v. New York, N.H. & H.R. Co.

• Decision Date: 20 October 1903
• Citation: 68 N.E. 227,184 Mass. 225
• Parties: BRADY v. NEW YORK, N.H. & H. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 225

68 N.E. 227

BRADY v. NEW YORK, N.H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 20, 1903

COUNSEL

J. B. Carroll and W. H. McClintock, for plaintiff.

Walter S. Robinson, for defendant.

OPINION

BARKER J.

The plaintiff was a car inspector employed at night in the defendant's Westfield yard. It was his duty upon the arrival of a train to inspect all its cars. If he found a car defective, it was his duty to repair it where it stood, if possible; otherwise to have it set out from the train. His tour of work was from 6 o'clock in the afternoon until 7 o'clock the next morning. During this time from 10 to 13 freight trains came in, each composed of from 30 to 35 cars. About 1 o'clock in the night on August 16, 1901, two freight trains entered the yars in close succession, each containing cars to be inspected and shifted in the yard. The engines which drew in these trains were at once detached and taken to the roundhouse, leaving the cars standing in the yard on two separate tracks. The cars thus left standing were thenceforth in the charge of one Horrigan the conductor of the yard, or yard master, and were not to be moved without his direction. For the purpose of moving them there was a switching engine, with its engineer and fireman and a switching crew, all or whom were under Horrigan's orders. Upon the arrival of a train, the inspection of its cars was the first thing to be done, and Horrigan had no right, in the proper discharge of his duty, to cause any car to be moved until the train in which it was had been inspected; but he in fact had the power to cause any of the cars to be moved as he might order, whether the inspection of the train had or had not been completed. Upon the arrival of the two trains, it was known both to Horrigan and the plaintiff that one of them had broken in two, and that some repairs to a car next the place where the broken train was apart would have to be made by the plaintiff. He first ascertained from Horrigan that the latter desired to deal first with the other train, and proceeded to inspect that train. When that inspection was completed, he proceeded to inspect the broken train, and to repair the defective car where it stood. In the meantime Horrigan, by means of the switching engine and crew, was dealing with the first train. Having finished with that train, he then began to deal with the cars of the second train, and so caused six or seven of its cars to be moved forcibly against the defective car which the plaintiff then was repairing, and which knocked him down and ran over him. The case was left to the jury upon the third count upon the issue whether the plaintiff's injury was due to the negligence of Horrigan as a superintendent, and upon the fifth count upon the issue whether the injury was due to the negligence of Horrigan while in charge and control of a train. After a verdict for the plaintiff, the case is here upon the defendant's exceptions, which were to the admission of evidence, to the refusal to give certain instructions requested, and to 'the instructions given to the jury not in harmony with the defendant's requests.'

1. The defendant contends that Horrigan was neither a superintendent nor a person in charge or control of a train, for whose negligence the plaintiff can recover. There was evidence tending to show that the department of inspection was distinct from that in which Horrigan and the switching crew were employed, and that the plaintiff was not under Horrigan's orders, and that the latter had no right to order a car to be moved until the train of which it was a part had been inspected by the plaintiff. Assuming all these things as facts of the situation, yet the jury could find that Horrigan, in his capacity as conductor of the yard, or yard master, was in fact a person, and the only person, who had the right to control, and who by his orders to the switching crew did control, and cause, all the moving of cars in the yard, and that any order from him to the switching crew to move a car or cars was to be obeyed, and was obeyed regardless of whether the inspection of the train had been completed or not. The switching crew acted upon his orders, and upon his orders only, and he gave and they obeyed the order in the execution of which the cars were let down against the car upon which the plaintiff was...