Keith v. New Haven & Northampton Co.

• Decision Date: 24 October 1885
• Citation: 140 Mass. 175,3 N.E. 28
• Parties: Daniel Keith v. New Haven and Northampton Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 175

3 N.E. 28

Daniel Keith v. New Haven and Northampton Company

Supreme Judicial Court of Massachusetts

October 24, 1885

Argued September 16, 1885 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Hampshire.

Tort for personal injuries received by the plaintiff while in the employ of the defendant corporation. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:

There was evidence tending to show that, on November 28, 1883, the plaintiff was a brakeman on a freight train of the defendant of twenty-three cars, which train left North Adams for New Haven in the afternoon, and while in the Hoosac Tunnel, about two miles east of North Adams, the plaintiff, while, in the line of his duty, descending from the top of a box car, fell to the ground, in consequence of the hand-hold at the top of the ladder giving way, and his foot was crushed by a wheel of the car. The train was composed largely of cars received from other roads, and the car alleged to be defective was not a car of the defendant corporation.

John Sweeney testified that he was the foreman of the defendant's car repair shop, and had general superintendence of car inspection and car repairs; that he furnished the inspector at North Adams with printed instructions before the time of the accident. The material portion of the printed instructions is as follows: "Rule 1. Each road is to deliver the cars to connecting roads in good running order, with journals, boxes, and bearings in good condition, as defined by the following rules. Rule 2. Each road may maintain an inspector at junction stations, and refuse cars unless they are put in good running order. Rule 3. Cars may be refused for any of the following defects: . . . . (h) Brake wheels, steps, ladders, or running boards, not securely fastened or in bad condition."

The witness further testified, that one inspector was sufficient for the business at North Adams; that he considered the one there appointed a competent and suitable man for the position; that he had instructed him to refuse all defective cars, and had, in conversation, given him instructions on particular cases from time to time. The witness also testified, on cross-examination, that he had charge of the workmen in the car department in New Haven; that the rules of the Car-builders' Association have no force with companies unless as they are adopted by them, and the defendant never acted on those rules; that the rules do not say that the company shall refuse cars; that Russell, the inspector at North Adams, came to New Haven once in two or three months; that he, the witness, had been at North Adams but a few times since Russell took charge there in August, 1881.

E. J. Russell testified that he was the car-inspector in the employ of the defendant at North Adams; that he had been so for a few years; that he had been, for fourteen months previously, employed by the Boston, Hoosac Tunnel, and Western Railroad Company, in the same place and in the same capacity, and for seven years prior thereto had worked for the Boston and Albany Railroad Company at Pittsfield, as car-sealer, switchman, and spare car-inspector; that one man was sufficient for the business at North Adams, which would not exceed twenty cars a day to be inspected; that he was hired by a former superintendent, and continued under the present one; that he considered his instructions were in the printed rules, and had acted under them; that he had received instructions from Sweeney what to accept and what to reject; that a car out of repair at North Adams would not be accepted, but if a car of local or important freight required only fifteen minutes' repairs, he would have them made; that the defendant's train men would put in new links if any were broken; that, under instructions from Sweeney, he would reject all cars with defective ladders; that he never accepted cars needing repairs, unless it were a trifling repair, which was made by the defendant's men; that he did not make a charge for a bolt or nut put on, but used his discretion in these matters.

On cross-examination, the witness testified: "We have a list of prices at which we furnish parts necessary for repairs made by our company for other companies. I have a shop at North Adams, ten by sixteen; no power but man power; we have wheels, no axle; some brakes. I do not know that we have any ladders. I would not take a car from other roads only as they had ladders. I never have made any repairs on cars brought here except broken bolts or nuts; other roads would do the same by me; we do make some repairs; there is no charge for a nut; we never charge for five-inch bolts; we never make any charge against companies for cars brought from other roads, and which we repair; we put in boxes for cars sometimes; when we mind to, we put them in, and when we do not want to, we do not. I heard of the accident that night; they telegraphed back from Shelburne Falls; I have no recollection of having inspected that train; do not remember having seen any defective ladders; I do not remember having inspected any particular train before it started out."

S. B Opdyke, Jr., testified that he was superintendent of the defendant corporation; that one inspector was ample for the defendant's business at North Adams; that Russell was a competent inspector; that the printed rules are proper...