Dunning v. New York Cent. R. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CARROLL
• Citation: Dunning v. New York Cent. R. Co., 255 Mass. 211, 150 N.E. 853 (Mass. 1926)
• Decision Date: 01 March 1926
• Parties: DUNNING v. NEW YORK CENT. R. CO.

255 Mass. 211

150 N.E. 853

DUNNING

v.NEW YORK CENT. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1926.

Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.

Action of tort by James E. Dunning against the New York Central Railroad Company to recover for personal injuries while using one of defendant's cars in connection with his work as railroad service porter. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

T. H. Bilodeau, of Boston, for plaintiff.

L. A. Mayberry and Walter F. Levis, both of Boston, for defendant.

CARROLL, J.

The plaintiff, employed in the railway mail service of the United States Government, was injured June 25, 1921, while using one of the care of the defendant, in connection with his work at the Overland Building, in Boston.

Cars for carrying the mail are furnished by the defendant under an act of Congress of July 28, 1916 (39 Stat. 412). The car in question reached Boston June 24, 1921, at 10:35 at night, and was shipped to the Overland Building, reaching there at 1:40 in the morning; unloading of the car was finished at 2:30, and the work of reloading began at five o'clock in the morning of June 25. At seven o'clock the plaintiff came on duty and began work. It was a part of his duty to assist in loading the car with mail, and he continued this work until 11:30, when he went to lunch and closed both of the sliding doors on the said of the car adjoining the platform. One of these doors was defective. Upon returning at twelve o'clock he attempted to open the defective door. The other door of her car was directly over the pit of the escalator, which was in operation. In attempting to open the defective door, the plaintiff took hold of the hasp of the door with his right hand, placing his left hand on the said of the car about an inch from the door. Some of the men in the crew assisted in opening the door and after forcing it, it moved with a quick slam and the broken glass in the door injured the plaintiff.

There was evidence that the glass was broken. One witness testified that at seven o'clock in the morning of the accident, he noticed that the glass was broken, ‘and the door was kind of out of plumb, out of place like’; that he spoke to one McNamara whom he saw doing repair work, ‘with reference to what he had seen of the door.’ The plaintiff testified in substance, that when he began work in the morning, the car door was open, there were five or six panes of glass in the door, and one of them was broken, ‘he didn't take much notice; that the door slid on four wheels * * * there were screws out of the iron plate that held the second wheel in pace’; that when he went to lunch he tried to close the door; that the wheel had worked off the runway because the screws had loosened; that when attempting to open the door, ‘My hand was in the position where if the door came without any force or the window wasn't broken, my hand wouldn't touch the door at all’; that he saw the inspectors ‘there all the time’; that he did not know ‘when [the door] * * * got to a certain point it would probably come quick.’ There was a verdict for the plaintiff and the case is here on the defendant's exceptions.

[1] It could not be ruled that as matter of law that the plaintiff assumed the risk. Taking into account the broken glass, the...