Hall v. Wakefield & S. St. Ry. Co.

• Decision Date: 27 February 1901
• Citation: 178 Mass. 98,59 N.E. 668
• Parties: HALL v. WAKEFIELD & S. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 98

59 N.E. 668

HALL v. WAKEFIELD & S. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1901

COUNSEL

R. W. Nason and T. W. Proctor, for plaintiff.

W. I Badger and Sanford Robinson, for defendant.

OPINION

HOLMES, C.J.

This is an action for personal injuries suffered by the plaintiff while acting as conductor upon one of the defendant's cars. The first count is at common law, on the ground of a failure to provide a safe place for the plaintiff, specifying the building of the track too near to a maple tree against which the plaintiff struck. The second count is under the employer's liability act, alleging a defect in the defendant's ways and works, and specifying the same facts. The third, also under the act, goes on the negligence of a superintendent. At the trial the judge directed a verdict for the defendant, and the case is here on exceptions.

The car was an open one and the plaintiff was going forward on the left hand running-board, to collect fares and to distribute transfers. A superintendent of the defendant, who was a large man, was standing on the running-board, and the plaintiff was stepping around him, and necessarily was thrown out a little further from the car than he otherwise would have been, and struck the maple tree. This tree was thirty-one inches from the body of the car, and eighteen and one-fourth inches from the outer edge of the running-board. On the other side of the car were poles of the defendant, so near the car that no one was allowed on the running-board on that side.

With regard to the first two counts, taking them just as they are it is to be observed that the location of the road in Wakefield, where the accident happened, was not under the defendant's control, but was determined by the selectmen and road commissioners of the town, and that, so far as appears, the defendant had no right to remove the tree. The argument, going outside the declaration, suggests that the defendant should have put its poles on the same side as the tree. But if such a suggestion is open and has anything in it, the short answer is that the presence of the tree was a permanent condition of the employment, and that the plaintiff, who had been in the defendant's service for some time, knew of the tree and took the risk of the danger from it, on the principle made familiar by many decisions. Lovejoy v. Railroad Co., 125 Mass. 79; Goldthwait v. Railway Co., 160 Mass. 554, 36 N.E 486; Ryan v. Railroad Co., 169 Mass. 267, 47 N.E. 877. See Quinn v. Railroad Co., 175 Mass. 150, 55 N.E. 891. It is said further that, as the defendant had not rested, the case had not reached a proper stage for a ruling on its negligence, citing some words from Fleck v. Railway Co., 134 Mass. 480, 482. Those words had reference to a provision in the...