O'Brien v. Boston & Albany Railroad Co.

• Decision Date: 09 January 1885
• Citation: 138 Mass. 387
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William O'Brien v. Boston & Albany Railroad Company

138 Mass. 387

William O'Brien v. Boston & Albany Railroad Company

Supreme Judicial Court of Massachusetts

January 9, 1885

Argued November 12, 1884.

Suffolk.

Tort for personal injuries occasioned to the plaintiff by being struck by a hand-car on the defendant's railroad near its station at Cottage Farm. Trial in the Superior Court, before Brigham, C. J., who reported the case for the determination of this court, in substance as follows:

The evidence tended to show that the plaintiff was in the employ of the defendant on May 6, 1881, and had been for some months, as a laborer engaged in the repair of the track that, on that day, he was one of a gang of such laborers working under the direction of a foreman, the day's work usually ending at six o'clock in the afternoon. At about fifteen minutes before six o'clock the gang were ordered by the foreman to quit work, put their tools away, and go to Boston on the train about to arrive at the defendant's station at Cottage Farm, to get their pay. At this station the passenger-house was on the south side of the railroad. Immediately north of the platform of the passenger-house was a track, which was known as the third track, and which was not used for passenger business, but merely for freight business. Immediately north of that track was a platform for passengers, from ten to twelve feet wide, and extending 100 or 200 feet in length. North of this platform, and parallel with it, ran the double-track main line of the defendant's road. On receiving the order above stated the plaintiff, with others of the gang of laborers in which he worked, deposited his tools in a tool-house which was situated north of the main tracks of the defendant's road, and then crossed the main tracks and came upon the platform above described as situated between the main tracks and the track nearest the passenger-house. The train which the plaintiff and his fellow laborers were to take for Boston was standing upon the more southerly of the two main tracks close alongside said platform. The plaintiff, and one or two others of the gang, stepped from the platform upon the third track, being the track southerly of the platform; as he testified, to make room for passengers to get in; as others testified, for the purpose of getting quickly to the smoking-car, which was near the head of the train, and toward Boston from the point where they reached the platform in the rear of the train, after leaving their tools in the tool-house on the north side of the road. On reaching the third track, the plaintiff and others ran on that track easterly toward the head of the train, and, while they were so running, an alarm was given. The others who were running on the track stepped off it; the plaintiff did not, but continued running on it, and was struck by a hand-car operated by members of a repairing gang of the defendant's trackmen, employees of the defendant, who were running the car easterly from the place where they had been employed, along the track. It was the custom for this gang of men to be taken into Boston by the defendant on its train, without payment of fare, once a month, to receive their pay, and they were to be so carried for that purpose at this time; and the others of the gang were so carried. One of the gang which left...