D'almeida v. Boston & M.R.r.
| Decision Date | 19 May 1911 |
| Citation | 209 Mass. 81,95 N.E. 398 |
| Parties | D'ALMEIDA SAME v. BOSTON & M. R. R. SAME v. BOOTT MILLS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. W. & S.E. Qua, for plaintiff.
Trull & Wier, for defendant Boston & M. R. R. F. E. Dunbar, J. J Rogers, and A. C. Spalding, for defendant Boott Mills.
The plaintiff's intestate, while working for the mills as a brakeman in the management of a dump car loaded with coal suffered injuries by the sudden and premature overturning of the car when in transit, from which after a short period of conscious suffering he died. It is conceded that the car was defective and unsafe, and the questions are whether there was evidence of negligence on the part of the respective defendants, or of his due care.
We first consider the exceptions of the mills. The railroad owned the car, which with other cars filled with coal consigned to the mills had been left on a side track near the premises, and from there they were drawn by horses over a spur track into the defendant's yard, and unloaded at the coal pocket. The work of moving and unloading was under the sole control of the mills, whose employés then returned the cars to the railroad. It also owned, and maintained that part of the spur track where the accident happened. The defendant manifestly was using the car for the purposes of its own business, and it formed part of its works as if it had been constructed or hired for the purpose. Foster v. New York, New Haven & Hartford Railroad, 187 Mass. 21, 72 N.E. 331; McNamara v. Boston & Maine Railroad, 202 Mass. 491, 89 N.E. 131. If the defendant provided an unsuitable car, or a car the defects in which could have been discovered by reasonable diligence, its duty to the intestate had not been discharged, either at common law or under the statute. Cormo v. Boston Bridge Works, 205 Mass. 366, 91 N.E. 313; Ruddy v. George F. Blake Mfg. Co., 205 Mass. 172, 91 N.E. 310; Feeney v. York Mfg. Co., 189 Mass. 336, 75 N.E. 733; St. 1909, c. 514, § 127.
This question was properly left to the jury under suitable instructions. The work was performed under the supervision of the foreman of the mills, who the jury could find had been intrusted with superintendence. Murphy v. New York, New Haven & Hartford Railroad, 187 Mass. 18, 72 N.E. 330. It was shown that three of the four cast iron hangers on the car, to which the links were attached, were so cracked 'as to be in two parts.' The links engaged the dogs, and if the dogs did not hold securely, the car which was of the 'rocker type' might tip and overturn. It also was in evidence, that the wooden floor beam holding the hanger which gave way appeared to be cracked, old and rotten, and so discolored as to indicate that the split had existed for some time. The defendant's foreman, called by the plaintiff, testified, that as the cars had to turn a sharp curve before reaching the coal pocket, they were given a momentum after leaving the side track, and before arriving at the spur track where the horses were detached, which would cause them 'to strike the curve * * * at a speed of seven or eight miles an hour.' He further said, that the cars could not safely be switched, and passed over the curve, unless in charge of an employé whose control of the brake would prevent the car from running into the bumper, or leaving the track as it approached the pocket. The strain from the lateral motion in rounding the curve, and the speed required, were circumstances known and appreciated by the foreman, who was present directing the work. Before the horses were attached, and the car started, he observed that the links at each end engaged the dogs, but made no further effort to ascertain its general condition. It does not seem to have been questioned, at the trial, that a further examination would have been ineffective unless the dumping attachments, which were underneath the car, had been inspected. The jury, however, could have found that the defects were not concealed, and would have been discovered if a thorough examination had been made, and that in failing to take this reasonable precaution before placing the intestate in a position, where if the car, and particularly the dumping apparatus, was not sound he would be exposed to great bodily peril, the foreman was negligent. Coffee v. New York, New Haven & Hartford Railroad, 155 Mass. 21, 25, 28 N.E. 1128; Feeney v. York Mfg. Co., 189 Mass. 336, 75 N.E. 733.
The question of the plaintiff's due care was rightly left to the jury, and the defendant's sixth and seventh requests having been waived, the first, second, third and fourth were inappropriate for the reasons stated. Gaynor v. Old Colony & Newport Railroad, 100 Mass. 208, 211, 212, 97 Am. Dec. 96; Prince v. Lowell Electric Light Corporation, 201 Mass. 276, 87 N.E. 558.
The exceptions of the railroad relate to the rulings and instructions permitting the jury to find that it could be held liable at common law, and under St. 1906, c. 463, pt. 1 § 63, with the mills for concurrent negligence, or a joint tort. It is participation in the wrong...
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