Cassady v. Boston & A.R.r.

• Decision Date: 25 June 1895
• Parties: CASSADAY v. BOSTON & A.R.R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 168

41 N.E. 129

CASSADAY v. BOSTON & A.R.R.

Supreme Judicial Court of Massachusetts, Suffolk.

June 25, 1895

COUNSEL

S.L. Whipple, W.R. Sears, and G.A. Saltmarsh, for plaintiff.

W Hudson, for defendant.

OPINION

LATHROP J.

The plaintiff was injured, while at work in a freight car, by the falling upon him of a grain door, which had been swung up against the roof of the car, and there fastened by a hook, a short time before, the work of swinging up and fastening being done by the plaintiff and a fellow servant. If there was any evidence in the case which would warrant a finding that there was any defect in the door or its fastening notwithstanding the testimony of the plaintiff and his witnesses that the hook was all right, it is to be found in the testimony of Agnew "that the end of the hook was a little more or less blunt from wear; that the top of the grain door, which would come directly under the jaw over the hook, was a little worn too,--he couldn't say positively how much, it may have been an eighth or a quarter of an inch that there was no iron over this part of the car door, to prevent the wood from wearing against the jaw above." It is to be noticed, however, that none of the witnesses testified that this condition of things caused the door to fall. Nor is there any evidence that the hook used in this case was not a proper and usual hook to use, although another kind of hook was put in evidence. The condition of things was known to the plaintiff. He had been in the employ of the defendant for three years, and was an experienced freight handler. It was a part of his duty to put up and hook the grain door. He did it in this instance, and looked to see whether it was all right, just as he had previously looked to see whether other grain doors which he had put up were all right. If, then, any defect existed in the door which would cause it to fall when the car vibrated, as all cars must vibrate when a heavy load is dumped into them, this defect was an obvious one, of which the plaintiff took the risk. Russell v. Tillotson, 140 Mass. 201, 4 N.E. 231; Anderson v. Clark, 155 Mass. 368, 29 N.E. 589; Carey v. Railroad Co., 158 Mass. 228, 33 N.E. 512; Conroy v. Inhabitants of Clinton, 158 Mass. 318, 33 N.E. 525; Murphy v. Rubber Co., 159 Mass. 266, 34 N.E. 268; Goldthwait v. Railway Co., 160 Mass. 554, 36 N.E. 486; Allen v. Iron Co., 160 Mass. 557, 36 N.E. 581; Rooney v. Cordage Co., 161...