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

• Decision Date: 26 November 1907
• Parties: DUMPHY v. NEW YORK, N.H. & H. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 471

82 N.E. 675

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

Supreme Judicial Court of Massachusetts, Worcester.

November 26, 1907

COUNSEL

Marvin M. Taylor, for plaintiff.

John L Hall, for defendant.

OPINION

SHELDON J.

If we assume that there was evidence on which the jury might have found that the defendant was itself negligent, or that there was negligence on the part of its servants for which the defendant might itself have been held liable either at common law or under our statutes, we are yet of opinion that the judge at the trial acted rightly in ordering a verdict for the defendant. The plaintiff was an experienced man. He knew that the train had come gradually to a stop upon a slightly rising grade; he knew that the drawbars which connected the cars were equipped with recoil springs, and that upon every stop there must be more or less movement of each car forward or back, amounting to some eight or ten inches, this movement being known as slack. Knowing also that this slack had not yet run back, that it naturally would tend to run back, and that under the circumstances of the gradual stop which had been made the effect of the slack running back would be to bring the deadwoods of the cars forcibly together, he went between the cars for the purpose of separating them by pulling out the block or pin in the drawbar; the slack came back, and his arm, which was between the deadwoods, was caught and crushed, causing the injury complained of. He gave no notice either to the conductor or the engineer of the train before going between the cars; and although he seems to have appreciated the danger of getting caught between the deadwoods upon the slack's running out, he took no other precatution than to see that his body did not get between the deadwoods, but did allow his arm to get into that position. He knew and appreciated the danger and did not guard against it; and the very injury against which he failed to guard happened to his arm. Nor can his contention that he had a right to expect the engineer to hold the train so as to obviate any danger from the slack until the plaintiff should himself give a signal to the contrary, be sustained on the evidence. Under these circumstances, it is impossible to say that he was in the exercise of due care, even if he did not assume the risk of the accident which happened. Ellsbury v. New York, New Haven & Hartford R. R., 172 Mass. 130, 51 N.E. 415, 70 Am. St. Rep. 248.

But the plaintiff's counsel claims that these circumstances are not conclusive against his right to recover, because it is provided in our statute that 'a railroad corporation in moving traffic between points in this commonwealth shall not haul or permit to be hauled or used on its lines any car which is not equipped with couplers coupling automatically by impact, and which can be uncoupled in some other way than by men going between the ends of the cars,' and that 'an...