Laporta v. New York Cent. R. Co.

• Decision Date: 16 May 1916
• Citation: 112 N.E. 643,224 Mass. 100
• Parties: LAPORTA v. NEW YORK CENT. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 100

112 N.E. 643

LAPORTA

v.NEW YORK CENT. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1916.

Report from Superior Court, Suffolk County; John F. Brown, Judge.

Action by Michele Laporta against the New York Central Railroad Company. On report Judgment for defendant.

J. W. Pickering and Jos. Vecchoni, both of Boston, for plaintiff.

Geo. L. Mayberry and L. A. Mayberry, both of Boston, for defendant.

PIERCE, J.

Assuming, but not deciding, that the testimony offered by the plaintiff and excluded by the presiding judge upon the objection of the defendant, should have been received, and that the plaintiff's several offers of proof are incorporated as evidence in the report, it could be found by the jury that the defendant undertook to furnish, and did furnish, steel and ties to the plaintiff's employer for its use upon land adjacent to the location of the railroad of the defendant, and not owned or controlled by the defendant; that the tracks of the railroad were between the place where the steel and ties were deposited by the defendant and the land upon which the employer of the plaintiff was expected to use them; that the defendant knew that the employer of the plaintiff and his men had to cross the railroad tracks to reach the land upon which the steel and ties were to be used and were used, and that no objection was raised thereto; that the defendant owned and kept in its tool house, which was near the Essex street bridge and across the tracks from the land where the employer of the plaintiff was doing work, certain tools and implements such as crowbars, bars, jacks, push cars etc.

There is no evidence that the defendant undertook to furnish to the employer of the plaintiff any tools or implements; nor is there any direct evidence that the keeper of the tool house had authority to permit the use of tools or implements by anyone other than a servant or employé of the defendant.

The jury, however, might reasonably find that the defendant had knowledge that its keeper of the tool house lent its tools and implements to the servants and employés of the plaintiff's employer, as needed in the prosecution of their work, and infer from all the circumstances, that the defendant sanctioned, if it had not directed, the action of the keeper.

It could also be found that immediately before the accident, the plaintiff and another, by the direction of their boss, crossed the tracks of the railroad of the defendant to fetch a jack; that they found one owned by the defendant ‘at a place opposite the coal sheds, about forty paces from the wooden bridge, beside the rail nearest the river, of the outer track, on which trains came from Boston.’ The plaintiff testified:

‘We stooped down, and we were going to pick it up and...