Caron v. Boston & A.R. Co.

• Decision Date: 26 November 1895
• Parties: CARON v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 523
42 N.E. 112

CARON
v.
BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 26, 1895.

Exceptions from superior court, Hampden county; Justin Dewey, Judge.

Action by Marie Caron, administratrix, against the Boston & Albany Railroad Company. There was a judgment for plaintiff, and defendant excepts. Sustained.

[164 Mass. 525]J.B. Carroll and W.H. McClintock, for plaintiff.

William H. Brooks, for defendant.

MORTON, J.

This case was submitted to the jury on the second, third, sixth, and seventh counts in the plaintiff's declaration. The jury found for the plaintiff on the seventh count, which alleged that the plaintiff's intestate was injured by reason of the negligence of some person, who had charge or control of a certain train, in shifting it over upon the track where the plaintiff's intestate was at work. The count does not allege how, or in what manner, the shifting of the train led to the injury; but it was not demurred to. See Steffe v. Railroad Co., 156 Mass. 262, 30 N.E. 1137. The defendant contends that the plaintiff's intestate was not in the exercise of due care. There was evidence tending to show that he was the hind end man on the train of which Collins was conductor, and that it was his duty to make up the train, and put it together, and make the couplings. “If there was any place lacking a pin or a link, he was supposed to put it in,” one of the witnesses testified. The last that was seen of him before the accident, he was going along towards the rear end of the train, with a pin and one or two links in his hands, and he was found at a place where there was a separation between the cars. There was nothing to show that he had any warning or knowledge that the cars which caused the collision [164 Mass. 526]were coming down the track, or that he could see them; and, for aught that appears, he was engaged in the discharge of his duty when injured. Due care may be inferred from the absence of negligence as well as from positive acts of diligence. Mears v. Railroad Co., 163 Mass. 150, 39 N.E. 997;Maguire v. Railroad Co., 146 Mass. 379, 15 N.E. 904. From the place where he was found it does not appear that, if Caron had a lantern, the accident would or might have been prevented; and, so far as appears, there was no duty resting on him to see that there was a lantern at the end of the train that he was making up. We think that there was evidence which justified the jury in finding that he was in the exercise of due care.

The defendant contends further that the plaintiff's intestate assumed the risk. There was some testimony from which, perhaps, the jury might have found that it was customary to run cars in on the same tracks at the same time from both ends of the yard, while trains were being made up. And it would be reasonable to say that the defendant's intestate assumed the ordinary risks arising from that method of transacting the business. Lynch v. Railroad Co., 159 Mass. 536, 34 N.E. 1072. But we do not think that it fairly can be held that he assumed the risk of accident from cars which were sent in, as there was evidence tending to show that the colliding cars were moving at the rate of 10 or 12 miles an hour, and with such force as to throw off the track one car of the train which Collins and his men were making up, and to break the drawbars of others. Such a manner of doing the business would be unreasonable, and not within any risk which the plaintiff's intestate assumed.

The defendant also contends that the cars which were switched onto the track where Caron was working did not constitute a train at the time of the accident; that, if they did, neither O'Brien nor Desloury nor Mozier was in “the charge or control” of it, as the instructions of the court permitted the jury to find they were; and that, under the seventh count, the defendant could be held liable only in case the accident resulted from the negligence of some one person who had “the charge or control” of them in shifting the cars to the track where plaintiff's intestate was. It is not easy to define what, under all circumstances, would [164 Mass. 527]constitute a train, within the meaning of the statute. A locomotive, with one...