O'Brien v. Boston & M.R.R.

• Decision Date: 07 January 1929
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: O'BRIEN v. BOSTON & M. R. R.

265 Mass. 527

164 N.E. 446

O'BRIEN

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1929.

Report from Superior Court, Suffolk County; James H. Fisk, Judge.

Action by Denis O'Brien against the Boston & Maine Railroad, in which a verdict was directed for the defendant. On report. Judgment ordered entered for defendant.

S. R. Jones, F. J. Monahan, and H. F. Fanning, all of Boston, for plaintiff.

A. W. Rockwood and F. P. Garland, both of Boston, for defendant.

CARROLL, J.

The plaintiff was injured while at work as a freight handler for the defendant, at house No. 44 of the Hoosac tunnel docks, Charlestown. At the close of the evidence a verdict was directed for the defendant. The case is before us on a report.

Separating house No. 43 and house No. 44 at the docks in question there was a partition running to the roof. On each side of the partition there was a railroad track. There were skylights at intervals above the track in house No. 44, and electric lights were strung along the track about seventy or eighty feet apart. On September 15, 1923, the plaintiff was one of eight freight handlers who were engaged in loading a freight car with burlap bags filled with asbestos. Just before this work was begun one of the freight handlers plugged an extension cord into a drop light located about fifteen feet from the freight car, but it failed to light. The cause of this did not appear. The men were told to go ahead with the work, that the light would be fixed as soon as possible. The loading of the car proceeded without any electric light in the car. Four of the freight handlers were engaged in loading one half of the car and the remaining four were engaged in loading the other half. The men worked in pairs, one Gallivan being with the plaintiff. The bags were about three feet long, eighteen inches wide and some five or six inches thick, each weighing about one hundred and forty pounds. They were piled parallel lengthwise to the end of the car. The plaintiff testified it was dark in the car; that it was the practice to have the lights connected with the socket lights and carried into the car. Just before the accident a pile of the bags had fallen. The plaintiff and Gallivan were told to build it up. Some of these bags were scattered on the floor and one was out of place, and Gallivan was in the act of pushing that bag into place when the middle pile in the second tier of bags fell over, striking the plaintiff and injuring him.

[2] The important question is, Was there any evidence of negligence on the part of the defendant or its agents? Assuming that it was dark, that there was no electric light, there is nothing to show that the plaintiff was injured because of the absence of light. There was no evidence that the bags were piled improperly; the evidence tended to show they were piled in the usual way. Mammott v. Worcester Consolidated Street Railway, 228 Mass. 282, 284, 117 N. E. 336. The absence of light was not the cause of the bags falling and there was nothing to show what caused them to fall. The plaintiff was an experienced freight handler, and so far as appeared his fellow workers were competent. When the plaintiff started to rebuild the pile he was engaged in the ordinary course of his employment, and he cannot successfully contend that he was not furnished with...