Kelly v. Boston & Maine R.R.

• Decision Date: 16 May 1946
• Citation: 319 Mass. 603,66 N.E.2d 807
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KELLY v. BOSTON & MAINE R. R.

319 Mass. 603

66 N.E.2d 807

KELLY

v.BOSTON & MAINE R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

May 16, 1946.

Exceptions from Superior Court, Middlesex County; Brogna, Judge.

Action of tort by Joseph P. Kelly against the Boston & Marine Railroad for personal injuries sustained by plaintiff through allegedly negligent movement of a train owned by defendant and operated by it on a sidetrack belonging to plaintiff's employer. Verdict for plaintiff and defendant brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

R. W. Reardon, of Salem, and N. F. Fermoyle, of Boston, for plaintiff.

J. P. Rooney, of Boston, for defendant.

WILKINS, Justice.

This is an action of tort for personal injuries sustained by the plaintiff through the allegedly negligent movement of a train owned by the defendant and operated by it on a side track in Winchester belonging to the plaintiff's employer. The jury returned a verdict for the plaintiff. The defendant's exceptions relate to the admission of evidence, to the denial of its motion for a directed verdict, and to the charge.

The jury could have found the following facts: On May 24, 1943, the plaintiff was employed by the General Crushed Stone Company, for which he had worked six or seven years. His duties covered ‘all classesof work,’ including loading cars, cleaning up, and for five years before the accident, assisting in moving cars left by the defendant ‘down to the hopper,’ or crusher. The defendant was the only railroad which brought in cars, and for a number of years had backed in and left cars on a siding owned by the General Crushed Stone Company near Holton Street, a public way. At ‘the point of the accident the land and the rails and the property were the property of the General Crushed Stone Company.’ The track extended slightly downgrade from Holton Street ‘right down under the crusher.’ At 30 or 40 feet from the ‘hopper’ the track was ‘almost on a flat,’ but as it approached Holton Street the grade gradually increased. The plaintiff was injured about 9:15 a.m. He had been ‘cleaning up around,’ and was standing on the north side of the track about 35 feet from the ‘hopper’ with one Fitzgerald, on employee of the General Crushed Stone Company, who loaded cars and who had had some experience as a brackeman in the employ of the defendant. There were six or seven cars which had been left the previous day about 100 feet from the ‘hopper.’ The plaintiff saw an engine backing in ten more cars. The plaintiff and Fitzgerald ‘stepped aside.’ A brakeman named Dempsey coupled the ten cars onto the cars that were there. The plaintiff and Fitzgerald motioned Dempsey to move the cars toward the ‘plant,’ and he in turn motioned ‘up ahead’ to that effect. As the cars came back and the rear car was about 40 feet from the crusher, Fitzgerald gave Dempsey the signal that he wanted them ‘spotted’ there, which was just above where Fitzgerald and the plaintiff were standing. Dempsey, who was then about 150 feet away at a loading platform on the north side of the track, signaled up forward, and the cars were ‘spotted.’ Dempsey ‘gave the high sign,’ and walked back on the north side of the track toward the engine. Fitzgerald saw him to toward the front end of the train until he was almost out of sight. The crew consisted of a conductor, two brakemen, an engineer, and a fireman. Dempsey came in almost every day with the cars, and the other crew members were ‘more or less the same.’ The train, consisting of sixteen or seventeen ‘regular coal cars with a little overhang in the back,’ extended beyond a crossing at Holton Street, and both from where the plaintiff and Fitzgerald were and from the other side of the train the engine could not be seen. Five or ten minutes, or six or eight minutes, elapsed while the train was stopped, and during that time the plaintiff busied himself in cleaning up loose stones. The plaintiff and Fitzgerald then ‘started to go to work.’ At that time there were no employees of the defendant near the rear end of the line of cars, and none could be seen from the south side of the track, and only Dempsey, as above described, from the north side. No smoke was visible, although the view was not obstructed. The plaintiff procured a ‘jack,’ or bar, four and one half or five feet long, which was down by the side of the ‘hopper,’ and took it to the rear end of the last car on the south side of the track where Fitzgerald was. The plaintiff stood on the southerly rail directly in back of the right rear corner of the car. He put the ‘jack’ partly under the wheel, so that the car could be moved slightly upgrade, while Fitzgerald started toward the front of the car to uncouple the pin. The plaintiff had not placed the ‘jack’ ‘exactly under the wheel’ when he saw the wheel moving. The wheel struck the ‘jack,’ and ‘some kind of a pressure came on his hand,’ causing him to ‘let go.’ He ‘grabbed the back of the car,’ and, as soon as he did, the car came back and knocked him sideways, and his leg went down under it. His foot was under the wheel while ‘he was hanging on there,’ and he ‘felt his toes getting squeezed.’ The train ‘suddenly’ moved backward about 20 feet and stopped. Fitzgerald went to the assistance of the plaintiff, who was still hanging on to the car. A ‘couple of minutes' later Fitzgerald saw smoke and ‘just the front end’ of the engine, which was ‘pulling back over the crossing.’ At that time he ‘supposed’ that the engine had already gone. Neither the plaintiff nor Fitzgerald heard any signal that the cars were to be moved. It a signal had been blown it could not have been heard where they were, either because the stone crusher was in operation or for some other reason. Sometime later after the engine had gone, Fitzgerald went up to Holton Street and found that one car had been pulled back over on the farther side of the crossing, that the street was ‘free,’ and that the front end of the second car was ‘flush with Holton Street’ on the stone crusher side. The six or seven cars as they had stood there from the night before had hand brakes set. These brakes were invariably set by the brakemen and never by the employees of the ‘quarry.’ They were still set after all the cars were ‘spotted.’ Consequently, before the car in question could be moved, it was necessary to release the brake, as Fitzgerald was going to do. After releasing that brake that car, which was ‘on the flat,’ would not start ‘until you bar it down.’ There was not grade enough to start it, and ‘they would have to give it another push to get it down underneath the hopper.’ When an engine is uncoupled after ‘spotting’ cars, the engine has to back one to three inches to enable the brakeman to release the coupling pin, but in the case of a sixteen car train there would be no movement of the rear car.

1. There was additional evidence which was admitted subject to the defendant's exception. The greater part of such evidence related to testimony by the plaintiff and Fitzgerald as to the custom or practice in the delivery of cars over a period of ‘two or three years.’ The substance of their testimony was that the defendant brought in cars every other day on the average; that the defendant ‘spotted’ the cars at a point determined by the plaintiff and Fitzgerald, usually about 100 feet from the crusher; that the plaintiff or Fitzgerald signaled the brakeman (who was on the ground or on one of the rear cars) where they wanted them ‘spotted’; that that brakeman signaled to another brakeman at the end of the train where the engine was; that the engine went away eventually; that the railroad never moved the cars once they had ‘spotted’ them at the designated place; that after the cars were ‘spotted’ the plaintiff and Fitzgerald waited six or eight minutes or five or ten minutes as a rule before they started to use any of the cars; that they would clean up around ‘until they would make sure that all was clear’; that if they did not want the car right away they might let it stay ‘for an hour or so’; that the plaintiff placed the ‘jack’ under the wheel to ‘slacken up’ the car two or three inches so that Fitzgerald might take out the coupling pin; that Fitzgerald then got on the car and handled the hand brake; that the plaintiff proceeded to ‘bar it down,’ or ‘jack’ the car down; that Fitzgerald stopped the car underneath the crusher; that this was done nearly every day; that the railroad generally brought in more cars and left them on the track; and that the employees of the General Crushed Stone Company would not ‘see them for a day or two and then the defendant corporation would come in the next day and push them over.'

The exception to the admission of the evidence of custom must be overruled. One objection of the defendant is that it did not appear that the defendant knew, or had any means of knowing, what the custom was. This, of course, does not refer to the evidence of what the employees of the defendant habitually did or did not do, and in particular does not apply to the evidence that the defendant never moved cars after they were ‘spotted.’ So far as it relates to what the plaintiff and Fitzgerald habitually did, it could have been fouund that the train crew was about the same at all times, that the defendant backed in cars nearly every other day, that the ‘spotting’ of the cars was done by the train crew upon the instructions of the plaintiff and Fitzgerald, and that in some manner thereafter the cars were loaded by the General Crushed Stone Company. From this is could have been inferred that the train crew knew what was the custom of the employees of the General Crushed Stone Company as to moving individual cars for the purposes of loading. Hines v. Stanley G. I. Electric Mfg. Co., 199 Mass. 522, 525, 526, 85 N.E. 851;Id., 203 Mass. 288, 289, 290, 89 N.E. 628;La Fond v. Boston & Maine Railroad, 208 Mass. 451, 457, 94 N.E. 693;Hanley...