Ferren v. Old Colony R. Co.

• Decision Date: 05 January 1887
• Parties: FERREN v. OLD COLONY R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 197

9 N.E. 608

FERREN v. OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Bristol.

January 5, 1887

Action of tort to recover for injuries sustained by the plaintiff on the defendants' premises by the crushing of the plaintiff between a coal car and the brick outer wall of a building in close proximity to the track on which the car was moving. Trial in the superior court before HAMMOND, J where the following evidence was submitted:

Daniel M. Ferren, the plaintiff, testified: "Am 54 years old and a blacksmith. Came to work for the defendant as a blacksmith in 1876. Did general forging. My work did not include anything else. Had nothing to do with the yard work. On January 20, 1883, in the morning, I went as usual to my work. I guess about an hour, I should say, I had been at work,--I should say about 8 o'clock. About that time, Mr Hopkins, foreman of the room of the blacksmith shop, of the forging department, came in close to my fire, and said 'All hands out to move a car.' I then had a heat on the anvil, working. The others started. The call was for all blacksmiths and helpers. There was a general start. I don't remember of any fire being idle; all were at work. I went out the outside door. They began to gather about the car to take their places. The car, at the time, was just in front of the door. It was chilly, and I went back and got my coat. George Frost, engineer, stood in the doorway at the time. I fell into line on the side of the car next to the door,--next to the building. Mr. Frost was at my right. As the car passed along-side of the building, my position was about like this, [witness here placed himself in a position as though leaning forward pushing, at the side of the car, with his face obliquely forward towards the car.] I was pushing the car. The car began to move. Of course, it moved slowly at first. We got it under pretty good headway, and going along all smoothly and nice. The first thing I observed, Mr. Dunbar, the man who was before me, drop to the ground under the car. I thought it was a kind of funny proceeding. I looked, and saw where I was. I saw the danger I was in. Like lightning it crossed my mind: I can't go under there, among those wheels; I will stop where I am; I will not go any further. I had pushed as far as I could. I thought, I will get another hold when I come back. I was leaning forward; so, when I came back, one of those stake pockets that was at my shoulder struck me on the shoulder, drove me ahead a step or two from the back,--struck this right shoulder. The stake-iron took me on my right shoulder, and knocked me ahead, and up against the side of the building. I could not recover myself readily. This shoulder caught on the rough bricks, and my coat fastened it to the wall. As I stood in this shape, bound here by the shoulder, the car moving in this direction, it rolled me like this, [the witness here, by the motion, showed how he was rolled between the car and the building.] I was fast there. In order to get me out, they were obliged to move the car. I could hear the snapping, cracking, and grinding of the bones of my shoulder. My chest seemed to be doubling right up together,--all crushed together. There was a strain on my hip, and it seemed as if it was being pulled to pieces; all at once that something gave way. I could feel that parting. My hip was between the car, these stakes, and the building. It seemed as though the pressure about my head was pulling my neck out of shape; the width of the space [between the car and the building] I have since learned was from seven to seven and a half inches. I was forced into this place. As soon as I was caught, I sung out, and think it was my helper that says: 'Hold on! Stop the car, for you are killing Dan.' I suppose they tried to stop the car. It stopped, at any rate, immediately, whether from my resistance I don't know. The car was rolled back. I dropped to the ground. Then they came in,--four men,--and took me up. They carried me into the engine room to a settee." Witness then testified as to the extent of his injuries, his state of health at the time of the injury, and his condition since.

On cross-examination, plaintiff testified: "I went out that morning because Mr. Hopkins called out for all hands to come out and move the car. It was a general call for hands, and it would look a little cheeky for me to stay in with all the rest going out; had gone out before in reply to such a call; had moved cars on another track before. I was in the shop from 1876 to 1883,--most of the time. Should say there were a dozen men pushing the car. I looked ahead when I was pushing the car. No one told me where to take hold of the car. All the direction I had was the call from Mr. Hopkins. I was about these premises for seven years, and knew them pretty well. I never refused to go out with the men, though I entered protests. I saw the wall of the building and the side of the car. I saw the space between the two into which I was going."

Albert Clark testified, in substance: "Am a blacksmith in the employment of defendant. He and Mr. Hopkins, on the day of the accident, called for the hands to come out and move a car. I went out with Ferren. The first I heard after we began to move the car, some one cried that Ferren was hurt, and we pushed the car back. I should say the space between the car and the building, without measuring, was about six inches." Witness further testified to the injuries to plaintiff, and that he and plaintiff had frequently gone out to help move a car; that the car in question was a flat car.

George H. Frost, the engineer at the works, testified: "I was assisting in pushing the car, and came near getting caught between the car and the building; jumped back. I suppose the iron stakes on the car caught Ferren, and rolled him in. Since the accident the track has been moved away from the building six inches further."

There was other evidence tending to show that it was customary for the men to come out and help move the cars, and that the space between the car track and the building was so narrow that a person could not pass when a car was on the track; that the space between the car track and the building narrowed about 38-100 of an inch in a foot, by a curve in the track; and that the track was laid with the proper curve for the situation of the buildings about it. There was also evidence that the car in question was not one of the defendant company's, but a car of another company.

It was not claimed by the plaintiff that the tracks or buildings were in any other way unsafe or dangerous except in their relation to each other and to other permanent objects of the yard. It was not claimed that the car was unsafe or dangerous except in its relation to the building, yard, and the track upon which it was moving. Upon this evidence the court ruled that the plaintiff could not recover, and directed a verdict for the defendant, to which ruling and direction the plaintiff excepted, and the presiding judge reported the case for the determination of the supreme judicial court.

COUNSEL

Reed & Dean, for plaintiff.

It is well settled that an employer is under an implied contract with those he employs to furnish suitable and safe means for carrying on his business, and this includes an obligation to provide a suitable place where the servant may, in the exercise of due care, safely perform his duty; and if special dangers, unseen, hidden, unappreciable to the employe, exist the employer is bound to warn the employe against them. Coombs v. New Bedford Cordage Co., 102 Mass. 572; Snow v. Housatonic Ry. Co., 8 Allen, 445; Sullivan v. India Manuf'g Co., 113 Mass. 397; Holden v. Fitchburg Ry. Co., 129 Mass. 268. This principle is not inconsistent with the rule of law that the employe assumes those obvious risks inherent in the service he contracts to do, of which he is presumed to have knowledge. Lovejoy v. Boston & L. Ry. Co., 125 Mass. 79; Yeaton v. Boston & L. Ry. Co., 135 Mass. 418; Leary v. Boston & A. Ry. Co., 139 Mass. 580; S.C. 2 N.E. 115; Russell v. Tillotson, 140 Mass. 201; S.C. 4 N.E. 231; Chicago, B. & Q. Ry. Co. v. Gregory, 58 Ill. 272; Chicago & R.I. Ry. Co. v. Clark, 11 Bradw. 104; Walsh v. Oregon Ry. & Nav. Co., 10 Or. 250; Farlow v. Kelly, 108 U.S. 288; S.C. 2 S.Ct. 555; McDermott v. New York Cent. Ry. Co., 28 Hun, 325; Hall v. Union Pac. Ry. Co., 16 F. 744; Baxter v. Roberts, 44 Cal. 187.

It cannot be held, as a matter of law, that the defendant was not negligent in thus setting to work the plaintiff in this place of danger without any warning or notice of the danger. This is a question of fact for the jury upon the evidence and the view. Snow v. Housatonic Ry. Co., 8 Allen, 441; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Chicago, B. & Q.R. Co. v. Gregory, 58 Ill. 272; Chicago & R.I. Ry. Co. v. Clark, 11 Bradw. 104. The danger was not obvious. Lovejoy v. Boston & L. Ry. Co., ubi supra; Leary v. Boston & A. Ry. Co., ubi supra.

It cannot be held, as matter of law, that the plaintiff was not in the exercise of due care. This is also clearly a question of fact for the jury. Coombs v. New Bedford Cordage Co., 102 Mass. 572. Under the facts as shown, the plaintiff cannot be held to be negligent. Ford v Fitchburg Ry. Co., 110 Mass. 240; Lawless v. Connecticut R. Ry. Co., 136 Mass. 1; Snow v. Housatonic Ry. Co., 8 Allen, 4...