Feneff v. Boston & M.R.r.

• Decision Date: 04 December 1907
• Citation: 196 Mass. 575,82 N.E. 705
• Parties: FENEFF v. BOSTON & M. R. R. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 575

82 N.E. 705

FENEFF v. BOSTON & M. R. R. et al.

Supreme Judicial Court of Massachusetts, Worcester.

December 4, 1907

COUNSEL

Clarence E. Tupper, for plaintiff.

Ralph A. Stewart and Arthur J. Young, for defendant New York Central & Hudson River Railroad Co.

Charles M. Thayer and Alexander H. Bullock, for defendant Boston & Maine R. R.

OPINION

BRALEY J.

The defendants insist that at the time of the accident the plaintiff was either a mere licensee to whom they owed no duty except to refrain from wanton or willful injury to his person, or was guilty of contributory negligence. This defense is untenable. It was undisputed that as a yard brakeman in the employment of the New York, New Haven & Hartford Railroad Company, having completed his work for the day, he was injured while riding within the yard limits on one of its passenger locomotives, which he had boarded for the purpose of going to the Union Station on his way home. The rules of this road conferred upon the yardmaster authority not only over the yard itself, but over employés when engaged therein in the train and yard service, and it was by his express order that the plaintiff had been directed to ride on any locomotive that might furnish the desired accommodation. The rule with which the plaintiff was familiar, and upon which the defendants largely rely, directing engineers not to permit any person except the fireman and others necessarily there in the discharge of their duty to ride on the engine without a pass from the general manager, must be read in connection with the rules relating to the powers of the yardmaster. When thus construed, it is manifest that within the limits of the yard, his general authority, and right of supervision had not been curtailed. It further could have been found from the testimony of the engineer that for 15 years at least it had been customary to furnish similar transportation for the convenience of yard employés. If this state of affairs prevailed, the jury could infer that to this extent the rule had been abrogated. Sweetland v. Lynn & Boston R. R., 177 Mass. 574, 59 N.E. 443, 51 L. R. A 783; Boyle v. Columbian Fire Proofing Co., 182 Mass 93, 98, 64 N.E. 726. It also is unnecessary to decide if the plaintiff had ceased to be a servant, and had become a passenger, as he was lawfully passing over the premises of his employer in its conveyance, which at the time had the exclusive use of the railroad. A servant entering upon his master's premises to begin the day's work, or upon leaving them at its close is not during the time of his entrance, or exit, while using the ways provided, a licensee, but is there by the invitation of the master. The defendants accordingly owed to him the duty, to refrain from acts of negligence which might cause personal injury while he was making his egress in the usual way. Olsen v. Andrews, 168 Mass. 261, 47 N.E. 90; Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 102, 64 N.E. 726; Holmes v. Drew, 151 Mass. 578, 580, 25 N.E. 22. In the uncertain light of the early morning, clouded with mist, a view of the track, and the signal at Washington street, were somewhat obscured from the cab where the plaintiff stood. While he knew that the switching engine frequently used this track, he testified, from previous observation, that before doing so, it had waited at the signal tower until the passenger engine went by. It further appears from his experience as a yard brakeman that he believed such engines when running through the yard 'had the least rights of any train or locomotive.' Under the circumstances, it was open to the jury to find, that the plaintiff was not reasonably bound to anticipate that without waiting as usual for the passing of the regular engine which then was due, the switching engine would attempt to use the track. If it be said that he assumed the risk attendant upon the time and mode of transportation, the assumption included only those risks which either were obvious or known to him. It cannot be ruled as matter of law, that the possibility of the attempted use of a single track at the same time by another locomotive approaching from an opposite direction the engine where he was riding, and which had the right of way, either was obvious or should have been anticipated. Wagner v. Boston Elevated Ry. Co., 188 Mass. 437, 441, 74 N.E. 919; Urquhardt v. Smith-Anthony Co., 192 Mass. 257, 78 N.E. 410.

The defendants further urge that the engineer was not only careless, but his carelessness is to be imputed to the plaintiff. But without further comment, as the jury could find that in entering, and remaining in the cab, he acted with reasonable caution, so they could find that he possessed no knowledge which reasonably should have led him to anticipate negligence on the part of the engineer. Shultz v. Old Colony St. Ry. Co., 193 Mass. 309, 79 N.E. 873, 8 L. R. A. (N. S.) 597. If, however, the impending collision was due in part to the engineer's fault, yet the impact of the engines followed so closely upon the discovery that it was unavoidable that it became an issue of fact whether the plaintiff, suddenly called on to face an emergency, could have taken any further steps for his safety. Shultz v. Old Colony St. Ry. Co., ubi supra. Besides, if the engineer was believed, he had the absolute right to a clear track beyond the point where the accident happended, and while taking every proper precaution, owing to the darkness he neither saw nor heard the switching engine, which displayed no light and gave no warning of its approach, until it was so near that the immediate application of the emergency brake failed to prevent the collision. If he were found to have used reasonable diligence the question of imputed negligence did not arise.

But if the issues of the plaintiff's right of recovery and of due care were for the jury, the defendants deny that there was any evidence of their negligence. It is to be inferred that the group of tracks within the yard was either owned or controlled by the various corporations described in the exceptions, but the arrangement whereby the New York Central & Hudson River Railroad Company maintained a signal tower from which the movements of all trains and locomotives were indicated and regulated, or the Boston & Maine Railroad was conditionally permitted to use the main line of the New York, New Haven & Hartford Railroad Company, is not stated. If not fully conceded by the plaintiff, at least it must be assumed upon the record, that such use was authorized, and it was unquestioned that the signals from the tower were designed for the information and guidance of the employés of whichever company might be using the several tracks. The switching engine could not pass to the main line unless the signal was given, and the switch set by the operator in the tower. If the engineer of this engine relied upon the signal as indicating that the track was clear to the south station, still from the evidence of the witness Studley it was apparent that he then knew, or in the exercise of reasonable care should have known, not only that the passenger engine had not made its trip to the union station, but was due to pass over the same track at any moment.

In brief, upon all the evidence, a jury would have been warranted in finding, that although under the system the usual signal had been given, the switching engine was being run on the time of another locomotive, by the engineer, who was willing to take the chance, without any reasonable expectation of safely making the transit. See Barry v. Boston Elev. Ry. Co., 194 Mass. 265, 80 N.E. 225. If its servant was careless while acting within the scope of his employment, the defendant railroad is answerable to the plaintiff for injuries caused by his negligence.

There also was evidence of the negligence of the remaining defendant. The night operator who was in charge of the tower at the time of the accident did not testify. But from the evidence of the day operator, it appears that time-tables of all trains, with the contents of which, as well as of their movements, the operator must be familiar properly to display the signals, and operate the switches, were kept in the tower. It further was shown that the switchman's shanty at the grade crossing near the South Station having been connected by telephone, the operators being in doubt as to the coming of the passenger...