Goldthwait v. Haverhill & G. St. R. Co.
| Decision Date | 28 February 1894 |
| Citation | 160 Mass. 554,36 N.E. 486 |
| Parties | GOLDTHWAIT v. HAVERHILL & G. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Plaintiff was employed in a stable and car sheds facing the street over which the defendant's railroad was operated. Immediately to the right of it, and but a few feet distant, was the car shed. The fronts of the car shed and stables were on a line with each other. Two tracks were used to connect the car shed with the main line of the street. The distance to the street from the car shed was about 50 feet and the two tracks entered the building on lines parallel with each other, and were 4 feet 5 inches apart at the nearest point. After leaving the building, the tracks curved in opposite directions to make connection with the main line; one track turning to the right, and the other to the left. These curves were a sufficient distance apart to permit of the passage of two cars in opposite directions, except for a short distance, where, if an open car was left so that its end projected over the curve, the running board of a car drawn past it might collide, because the ends of both cars would swing in towards each other as they passed around the curve. The plaintiff had been in the employ of defendant from March until August of 1891, and during that time had not only been employed in the stable but also in the car shed, and in moving the cars in and out over both these curves. He testified that he was familiar with the place, and knew that cars were sometimes run out on the curve, and stood there while other cars passed them. He had driven cars in and out over both of these curves, and had seen the distance between the tracks; and he further stated that he knew that when he went around the curve the head of the car upon which he was standing would go to the right, and the hind end of the car would swing in the opposite direction. Plaintiff asserted that at about 3 p.m., August 10th, car No. 5 was standing, without horses attached to it on the westerly of the two tracks leading from the car house to the street, which would be the track nearest to the stable door; that the driver of car No. 17 was about to drive out and hitch a pair of horses to his car, which stood on the easterly of the two tracks leading from the car house; that he thought the rear end of the car was a little way inside of the front of the car shed; that the boss of the stable told plaintiff to go and unset the brake on car No. 17; that he passed out of the stable door, and passed by the southerly end of car No. 5, as it stood upon the curve, and went to car No. 17; that he stepped upon the running board of 17 and reached forward and let go the brake on the rear end, standing with one foot off the running board and one foot on; that the driver of No. 17 started his horses in a walk to go out to the main street, the plaintiff standing with his left foot hanging over the side of the running board; that, while so standing, car No. 17 had moved out a sufficient distance to bring the running board of the two cars together, and his left leg was caught just above his ankle, and the bones were broken by the collision between the running boards of the two cars. He further testified that he was acquainted with the situation, and knew that these cars must be on the curve, in order to make this trouble; that in coming from the inside of the car house, until the car got to turning so that it brought the two running boards together, he did not do anything after he let the brake off; that he stood there, and when he got a chance he jumped off; that he could not tell how far he rode before he attempted to step off; and that he attempted to get off as soon as he had a chance; that he did not look to see the car, nor to see when he had a chance to step off; and that there was nothing to prevent his stepping off after he let go the brake.
E.T. Burley, for plaintiff.
A.A. Strout, Robert F. Herrick, and Guy Cunningham, for defendant.
If it be assumed in favor of the plaintiff that he had no actual knowledge of the danger, yet its character and the circumstances bearing upon the question were, upon the undisputed evidence, such as to show that he ought to have known and appreciated it. It was not only incident to his employment, but so obviously incident that he must be presumed to have known and appreciated it, and must be held to have accepted as one of the risks of his employment the danger of injury to himself by being caught between cars swinging towards each other on the tracks at the entrance to the car house. The tracks were perfectly familiar to him, and were wholly open to view. The cars used upon them were also perfectly well known to him. He had driven them upon the street, and had himself taken them back and forth from the street into the car house, and from the car house into the street. He had also seen them standing on the curves, and being taken in and out by other workmen. The space between the tracks had been constantly a matter open to his observation, as well as the length and the...
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