Engel v. New York, P. & B.R. Co.
| Decision Date | 05 December 1893 |
| Citation | 160 Mass. 260,35 N.E. 547 |
| Parties | ENGEL v. NEW YORK, P. & B.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank M. Forbush and John W. Keith, for plaintiff.
William A. Gile, for defendant.
This is an action brought under St.1887, c. 270, § 2, [1] to recover damages for the death of the plaintiff's intestate through an alleged defect in the condition of the defendant's ways. The question is whether the cause of the accident is within the statute. The deceased was killed by being knocked off a car of the defendant's by a slanting bridge or chute over the track between two buildings of the Washburn & Moen Manufacturing Company, in that company's yard. The track was that company's track owned, maintained, and repaired by it, the bridge of course was its bridge, and the defendant came on the track only as licensee or invited under a contract by which the defendant delivered freight in the Washburn & Moen Company's yard on certain terms. A majority of the court are of opinion that the track was no part of the defendant's ways, within the meaning of the statute.
We could not come to a different result without repudiating the reasoning of Trask v. Railroad Co., 156 Mass. 298, 304, 31 N.E. 6, and the tests sanctioned by that case and by Coffee v. Railroad Co., 155 Mass. 21, 23, 28 N.E. 1128. See, also, Regan v. Donovan, 159 Mass. 1, 3, 33 N.E. 702. The track is not provided by the defendant, or subject to its control. In the language of Roberts & Wallace, (Employ. Liab. [3d Ed.] 249,) the defendant had not adopted it as its own. We are not dissatisfied with these tests, and we think that neither the language of the statute nor good sense would permit us to hold an employer liable under the act for defects which he cannot help, in a place out of his control, to which his employes once in a while may be called for a few minutes. It will be understood that our view by no means requires ownership as a condition of the defendant's liability.
The words of the act are, "which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways *** were in proper condition." These words mean that the defect must be one which the employer has a right to remedy if he does discover it, and of a kind which it is possible to charge a servant with the duty of setting right. They cannot be made clearer by discussing the principles of common-law liability, or by referring to decisions upon a wholly different kind of statute, like Com. v. Boston & L.R. Co., 126 Mass. 61.
Our decision may not leave the plaintiff remediless. If there was a defect, it is possible that there may be a liability on the part of the Washburn & Moen Company. Finnegan v. Gas-Works Co., (Mass.) 34 N.E. 523; Osborne v. Morgan, 130 Mass. 102, 104.
Judgment on the verdict.
The opinion of the majority of the court puts upon an important clause of the employers' liability act a construction which seems to me wrong. The track on which the plaintiff's intestate was killed was of the same kind, and used by the defendant in the same way, as ordinary side tracks constructed for the delivery of freight to manufacturing companies having works near the line of a railroad. It was used by the defendant in the transportation of freight for hire. Freight carried over the defendant's railroad was received and delivered at the works of the Washburn & Moen Manufacturing Company without extra charge, the price paid for transportation to and from other stations including the transportation over this track. Freight sent away by other railroads or received from them was carried over this track by the defendant for a stipulated price paid by the Washburn & Moen Manufacturing Company. There can be no doubt that if the defendant had owned the track it would have been a part of its ways and works, within the meaning of the statute. Is such a track any the less a part of the ways and works of a railroad company, as between the company and its employes, if it is hired from a third party, or furnished for use by the owner of the freight? If it is owned and kept in repair by the freight owner, that fact presumably is taken into account in fixing the terms on which the freight is carried, and its use by the carrier in his business is in that way paid for by the carrier as much as if it were hired from a third party. The statute is intended to define the rights and liabilities of employer and employe. The question what constitutes the ways, works, or machinery is a question which arises only between employer and employe, and should be answered in such a way as to give effect to the meaning of the statute. The employe finds a track of this kind used like other side tracks belonging to the corporation, adapted to the convenient transaction of its freighting business. Ordinarily, he has no means of knowing whether the track is owned and maintained by the railroad corporation or by the manufacturer whose freight is brought over it. All he can see or know is that it is connected with, and used in, the business of the corporation in delivering freight. Whether an additional price is paid for the transportation of its cars or of the cars of other railroads over that track he does not know, nor is it important for him to know. It is a place specially fitted for the work of his employer, on which his employer sets him at work, and in which the employer presumably has rights for the time being. It ought to make no difference under the statute how the employer procures the ways, works, or machinery connected with and used in his business, or by what kind of title he holds them. So long as they are connected with his business, and used in it, it is his duty to have them safe, so that his employes may not be unnecessarily exposed to danger. If another owns and furnishes them, and agrees to keep them safe, it is his duty, as between him and his employe, to see that the owner properly does what he agrees to do.
It is a general rule at the common law that a railroad corporation is liable for an injury to a passenger, or for loss of freight arising from a defect in a track of another corporation over which it runs its cars, as if it owned the track. As between the two corporations, the only duty to maintain the track in repair under their contract may be upon the owner of the road, but, as between the first-mentioned corporation and a passenger or owner of freight, it is the duty of the carrier to have the track safe, whether it owns it or hires it. McElroy v. Railroad Co., 4 Cush. 400; McCluer v. Railroad Co., 13 Gray, 124; Feital v. Railroad Co., 109 Mass. 398; Murch v. Railroad Corp., 29 N.H. 9; Railroad Co. v. Peyton, 106 Ill. 534; 2 Redf. R.R. (4th Ed.) § 204. See, also, Railroad Co. v. Barron, 5 Wall. 90; Sprague v. Smith, 29 Vt. 421; Webb v. Railroad Co., 57 Me. 117, 128. The duty of a railroad corporation to furnish for its employes safe tracks, cars, locomotive engines, and other machinery, tools, and appliances with which its business is to be carried on, is similar in kind to its duty to passengers in these respects, although the degree of care required is less. In either case its duty is the same when the tracks, cars, and engines are hired or used under a license from others, as when they are owned by the employer. Spaulding v. Granite Co., (Mass.) 34 N.E. 1134; Railroad Co. v. Ross, 142 Ill. 9, 31 N.E. 412; Stetler v. Railroad Co., 46 Wis. 497, 1 N.W. 112; Id., 49 Wis. 609, 6 N.W. 303; Railroad Co. v. Cagle, 53 Ark. 347, 14 S.W. 89; Smith v. Railroad Co., 18 F. 304. In Stetler v. Railroad Co.,...
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