Cross v. Boston & M.R.R.

• Decision Date: 14 February 1916
• Citation: 223 Mass. 144,111 N.E. 676
• Parties: CROSS v. BOSTON & M. R. R. SAME v. SPRAGUE, BREED & BROWN CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 144

111 N.E. 676

CROSS

v.BOSTON & M. R. R.

SAME

v.SPRAGUE, BREED & BROWN CO.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 14, 1916.

Exceptions from Superior Court, Essex County; John H. Hardy, Judge.

Actions by Leonard M. Cross against the Boston & Maine Railroad Company, and against Sprague, Breed & Brown Company. There were verdicts for defendants, and plaintiff excepts. Plaintiff's exceptions overruled as against the Railroad Company, and sustained as against Sprague, Breed & Brown Company.

Niles, Stevens, Underwood & Mayo and D. E. O'Brien, all of Lynn, for plaintiff.

H. V. Cunningham and Blodgett, Jones, Burnham & Bingham, all of Boston, and A. T. Good, of Roxbury, for defendant Sprague, Breed & Brown Co.

Henry F. Hurlburt and Carroll A. Wilson, both of Boston, for defendant Boston & M. R. R.

CARROLL, J.

The plaintiff, a brakeman in the employ of the defendant in the first-named action, hereinafter called the ‘railroad,’ was injured by being crushed between the side of a coal car and a post on the premises of the defendant in the second action, hereinafter called the ‘Coal Company.’ The accident happened on January 19, 1913, about 3:30 o'clock in the morning, at Beverly, Mass. The plaintiff was an experienced brakeman. He had been in the employ of the railroad for a period of eighteen or nineteen years; for seventeen years of that time he had worked at moving freight cars, and from 1910 to the time of the accident he had been in the yards of the railroad in Salem and Beverly. Beginning early in December, 1912, he went regularly each night with the train crew to the yard of the coal company, and from twelve o'clock midnight until five o'clock in the morning, worked as a brakeman moving cars in the coal company's yard and in an adjoining yard of the Guffey Oil Plant.

At the time of the accident, the plaintiff was holding the grab handle, standing on the step of the forward end of a moving car, was caught by a post between tracks three and four and thrown to the ground. This post was three feet one and five-eighths inches from the track, and was the only post between tracks three and four. It was used as a support for an overhead framework upon which there was a narrow gauge track for the operation of small coal cars. The plaintiff testified that he never had seen this post nor had his attention called to it. Between tracks four and five there were six posts, varying from three feet six inches to three feet nine and one-half inches from track four, and four feet three and one-half inches, to four feet and three-fourths inches from track five. Between track five and the fence around the premises, there was a post three feet two and one-half inches from the rails. There were five 32-candle power electric lights on posts between tracks four and five. The light nearest the post where the plaintiff was injured was six feet nine and five-eighths inches. There was evidence that on the morning of the accident this light was not burning. The treasurer of the coal company testified that between twelve o'clock midnight and five o'clock in the morning two employés of the coal company were on the premises, the weigher and the watchman.

‘The watchman flags the trains, sees that electric lights are all turned on and that they are in good condition. * * * The lighting up of the yard is left to him. * * * It was the duty of Mr. Murphy, the night watchman, to keep the lights burning at the time coal was being shipped out of there.’

The tracks were constructed by the railroad, under an agreement with the coal company, the latter to pay the expenses of construction. By the contract the coal company was to keep the track in proper repair outside the railroad location, the railroad company having the right ‘to refuse to operate on said track when its condition is unsatisfactory to the railroad.’ The coal company could terminate this contract on ten days' notice and the railroad on thirty days' notice, ‘upon the failure of the said shipper to comply with reasonable rules and regulations of the railroad.’ The railroad was not a subscriber under the workmen's compensation act, St. 1911, c. 751.

1. The plaintiff contends that the railroad was negligent, because of the nearness of the post to the track and the insufficient light which made the place unsafe, and because of its failure to warn and instruct the plaintiff. A railroad company is not bound to instruct and point out to an experienced brakeman the location and distance of the abutments, bridges, poles and switches along the line of its track where he may be called to work, even where these objects are upon its own land. Kempton v. Boston Elev. Ry., 217 Mass. 124, 104 N. E. 358;Bence v. N. Y., N. H. & H. R. R., 181 Mass. 221, 63 N. E. 417;Ryan v. N. Y., N. H. & H. R. R., 169 Mass. 267, 47 N. E. 877;Vining v. N. Y. & New England R. R., 167 Mass. 539, 46 N. E. 117;Thain v. Old Colony R. R., 161 Mass. 353, 37 N. E. 309;Fisk v. Fitchburg R. Co., 158 Mass. 238, 33 N. E. 510. Where these conditions exist at the time of employment, and are obvious, there is no negligence in continuing them, because no duty or obligation of the master to the servant is broken by suffering such obvious structures to continue as they are at the time of the contract; and this is so under St. 1911, c. 751. Ashton v. B. & M. R. R., 222 Mass. 65, 109 N. E. 820. See, also, Cullalucca v. Plumouth Rubber Co., 217 Mass. 392, 396, 104 N. E. 956. Under ordinary circumstances a railroad is not held to a higher degree of care in the management of its trains on the premises of another corporation than upon its own location, and it cannot be held to the duty of pointing out and warning an experienced brakeman who is called upon to work in these industrial yards along the line of the railroad, of the obstructions, buildings and poles which may be dangerous under certain conditions, especially when the construction and maintence of these erections is not in the control of the master and may vary without notice from day to day. Trask v. Old Colony R. R., 156 Mass. 298, 31 N. E. 6;Engel v. N. Y. Providence & Boston R. R., 160 Mass. 260, 35 N. E. 547,22 L. R. A. 283;Moynihan v. King's Windsor Cement Dry Mortar Co., 168 Mass. 450, 47 N. E. 425;Hyde v. Booth, 188 Mass. 290, 74 N. E. 337.

The railroad did not construct the post between tracks three and four. It had no control over it, and it was not guilty of negligence...