Ladd v. New York, N.H. & H.R. Co.

• Decision Date: 01 January 1907
• Citation: 193 Mass. 359,79 N.E. 742
• Parties: LADD v. NEW YORK, N.H. & H. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 359

79 N.E. 742

LADD v. NEW YORK, N.H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1907

COUNSEL

Aldrich, Shurtleff & Baldwin, for plaintiff.

Frank W. Knowlton and Henry J. Hart, for defendant.

OPINION

SHELDON J.

In our opinion the jury might have found upon the evidence that upon the arrival of the car in Boston the defendant, instead of unloading the car and delivering the hay at its freighthouse chose to make delivery from the car itself, and that this was the reason for the defendant's keeping the car unloaded in one of its yards for six days before shifting it, at the request of Robinson, the purchaser of the hay and the employer of the plaintiff, into another place. If the jury found that this was the fact, then the defendant, by adopting the car as the storehouse from which Robinson was to take the hay, invited him and his men to come thither and there unload the hay. It made the car its temporary freighthouse, which, so far at any rate as could be accomplished by the exercise of ordinary care, it was bound to keep in a safe condition for the use of those men who should properly come to take out the hay which it contained. Bachant v. B. & M. R. R., 187 Mass. 392, 73 N.E 642, 105 Am. St. Rep. 408; Foster v. N. Y., N.H. & H. R R., 187 Mass. 21, 72 N.E. 331. As was said by Braley, J., in Bachant v. B. & M. R. R., ubi supra, 'Under its contract as a common carrier the defendant was required to provide a safe and proper place for delivery.'

It is not material that this car was, as in Foster v. N. Y., N.H. & H. R. R., ubi supra, the property of another. By adopting and using it for its own purposes, as might have been found to be the fact, the defendant had made it one of its own appliances, of which it had assumed full control and for which it was responsible as for its own property. Bowers v. Connecticut River R. R., 162 Mass. 312, 38 N.E. 508; Fletcher v. B. & M. R. R., 1 Allen, 9, 79 Am. Dec. 695; Schopman v. Boston & Worcester R. R., 9 Cush. 24, 55 Am. Dec. 41; Cotant v. Boone Suburban Ry., 125 Iowa, 46, 99 N.W. 115, 69 L. R. A. 982; Combe v. London & Southwestern Ry., 31 L. T. 613. It was the defendant and not the general owner of the car that furnished this car to Robinson's men, including the plaintiff, and that was responsible for its condition. Hale v. New York, New Haven & Hartford R. R., 190 Mass. 84, 76 N.E. 656; Glyn v. Central R. R. of N. J., 175 Mass. 510, 56 N.E. 698, 78 Am. St. Rep. 507; Spaulding v. Flynt Granite Co., 159 Mass. 587, 34 N.E. 1134. The car had passed out of the control of its general owner and the defendant was using it for its own purposes. Caledonian Ry. v. Mulholland [1898] App. Cas. 216. The cases which consider the rule that, as to cars which one railroad company receives from another for transportation over its line, it owes no other duty to its employés than that of providing a sufficient number of competent inspectors, have no application to this case, and need not be referred to.

There was also evidence that the defendant had been negligent in the performance of its duty. Entirely apart from the question whether the defect in this car was a latent defect or whether it could have been discovered by a proper inspection, as to which we express no opinion, there was evidence that two or three days before the happening of the accident the plaintiff's employer had notified Sullivan, one of the defendant's servants, that the door of this car was in bad condition, but that nothing was done by the defendant to remedy the defect until after the accident; and the jury might have found that Sullivan, after due notice by the plaintiff's employer, failed to make any proper examination of the car or the door. In view of the duty resting upon the defendant which already has been stated, we are of opinion that the jury might have found that it was guilty of negligence in not having discovered the defect and either remedied it or done something to guard against injury resulting from its existence. And there was other evidence from which the jury might have found, irrespective of the notice received as aforesaid, that the defendant had had sufficient opportunity to discover and remedy the defect or to guard against injurious consequences resulting from it, before electing to use it as a place of delivery.

The defendant does not deny that there was evidence for the jury that the...