Coughlan v. City of Cambridge

• Decision Date: 25 May 1896
• Citation: 166 Mass. 268,44 N.E. 218
• Parties: COUGHLAN v. CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 268

44 N.E. 218

COUGHLAN v. CITY OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1896

COUNSEL

J.W. Corcoran, D.B. Ruggles, and J.F. McDonald, for plaintiff.

G.A.A Pevey, for defendant.

OPINION

MORTON J.

There was evidence that the plaintiff and others were directed by the "boss" at the dump to get onto the cars and go back to the pit to help fill them; that nothing was said as to where they should sit, though the evidence on this point was conflicting; that the floor of the cars was wet; and that the plaintiff sat on the side or edge of a car with his feet inside, and holding on with both hands. According to this, he was rightfully on the car, and we cannot say that his manner of riding was negligent. There was evidence which warranted the jury in finding that the accident was due to negligence on the part of the engineer in passing over the switch at an unreasonable speed, and in bringing the train too suddenly to a stop. Taking into account the nature of the risk, and granting that the plaintiff assumed the risk arising from the rough condition of the track, we do not think that he can be held to have assumed the risk caused by driving the train at an unreasonable speed over the switch, and then bringing it to a sudden stop. He would have no reason to anticipate, in the ordinary conduct of the business, such a mode of managing the train.

At the time of the accident the defendant was engaged, by means of a locomotive, and train and hands to manage the same, hired by it from the Fitchburg Railroad, in transporting gravel from one portion to another of certain premises held and owned by it, in connection with its waterworks, for the purpose of improving the same. The track was laid by, and with the exception of the ties belonging to, the railroad, and was to be removed by it when the work was finished. The improvement which the defendant was engaged in making was for its own benefit and on its own premises. And when the relation of master and servant exists between employer and employé, as it did here between the plaintiff and defendant and others engaged in the work, we see no reason why St.1887, c. 270, should not apply to a city or town. See Connolly v. City of Waltham, 156 Mass. 368, 31 N.E. 302; Hennessy v. City of Boston, 161 Mass. 502, 37 N.E. 668; Driscoll v. City of Fall River, 163 Mass. 105, 39 N.E. 1003; McCann v. City of Waltham, 163 Mass. 344, 40 N.E. 20. The track was a short and temporary affair, and the use of it and of the locomotive and cars was to continue only for a short time; but we think that it was a railroad, within the meaning of the act.

We think that the notice was sufficient. The time, place, and manner of the accident are clearly stated. One statement of the cause was "the negligent management of the said train on the said switch by some one then and there in the service of said city, and who was intrusted with and exercising superintendence over the work in which I was then engaged or who had charge or control of the switch, locomotive engine, or train then and there operated as aforesaid." There was also a statement that the train, temporary track, and switch were defective and unfit for use, and that the injury to the plaintiff was caused thereby. We do not think that the notice is defective because it alleges different causes, each of which is adequately stated. See Beauregard v. Construction Co., 160 Mass. 201, 35 N.E. 555; Lynch v. Allyn, 160 Mass. 248; 35 N.E. 550; Brick v. Bosworth, 162 Mass. 334, 39 N.E. 36. The defendant was not harmed by the omission to refer to the notice in the charge.

The defendant contends, further, that the trainmen were not the servants of the defendants. By the contract between the city and the railroad company, the latter "agrees to furnish for the use of the city a locomotive and twenty dump cars together with conductor, engineer, fireman, and one brakeman, to manage the train," and to keep the locomotive and cars in repair, and furnish fuel and supplies necessary for the same. The train is to be used to transport gravel and other material for filling around the northwesterly side of Fresh...