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

• Decision Date: 26 February 1896
• Citation: 165 Mass. 267,43 N.E. 94
• Parties: CONTENT v. NEW YORK, N.H. & H.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 267

43 N.E. 94

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

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1896

The third count of plaintiff's declaration, on which he elected to go to the jury, is as follows: "And the plaintiff says that on or about the 13th day of December 1893, while in the exercise of due care, and working for the defendant corporation on its line of railroad in what is known as the 'Back Bay Yard,' in the city of Boston he was injured by reason of the carelessness and negligence of some person in the service of the defendant who has charge or control of a train upon the defendant's road. And the plaintiff further says that said carelessness and negligence consisted in leaving a car upon a side track in such close proximity to the main track, that, while the plaintiff was coming down the side ladder of the car upon which he was working, he was struck by said car on said side track, and severely injured. And the plaintiff further says that he has suffered greatly in body and mind for a long time, to wit the present time, and has been in the past, since the time of said injury, and will be in the future, unable to do any work. And the plaintiff further says that due notice of the time, place, and cause of said injury was given to the defendant as required by law. All three counts being for the same cause of action."

The evidence showed that plaintiff was an experienced railroad man; that he was injured while coming down the side ladder of a car, by being struck by a Star Union car standing on the side track; that such cars were often on such tracks, and were larger than ordinary freight cars, which also was known to plaintiff; that the side track was parallel with the track on which plaintiff was riding; and that it was dark at the time.

COUNSEL

S.A. Fuller, for plaintiff.

Benton & Choate, for defendant.

OPINION

ALLEN J.

There was no conflict in the evidence as to the material points. The position of the tracks was open and visible. The use and the size of the Star Union cars were known to the plaintiff. The side tracks were used as storage tracks, and were generally filled with cars. At the place where the plaintiff was hurt the side track was parallel with the track upon which he was riding, and had not begun to curve in towards the other track. If the car had been left upon the curve nearer the point of junction, the case would be different; but its...