Lawless v. Connecticut R. R. Co.

• Decision Date: 13 October 1883
• Citation: 136 Mass. 1
• Parties: Robert Lawless v. Connecticut River Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 1

Robert Lawless v. Connecticut River Railroad Company

Supreme Court of Massachusetts

October 13, 1883

Hampden. Tort, for personal injuries occasioned to the plaintiff while in the defendant's employ as a brakeman by a locomotive engine alleged to have been improperly constructed. At the trial in the Superior Court, before Gardner, J., the jury returned a verdict for the plaintiff in the sum of $ 4500; and the defendant alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

G Wells, for the defendant.

G. M. Stearns, for the plaintiff.

Colburn J. Field & W. Allen JJ., absent.

OPINION

Colburn, J.

The rules of law which are applicable to this case are well settled in this Commonwealth.

It was the duty of the defendant to furnish a locomotive engine suitable for the work which it required the plaintiff to perform with it, and to exercise ordinary care in the performance of this duty, and it was responsible to the plaintiff, if he was using due care, for an injury resulting from its negligence or want of ordinary care in this respect. It did not necessarily discharge this duty by entrusting it to suitable servants and agents, but was responsible for the negligence or want of ordinary care of such servants and agents in the performance of the duty required of them. Such servants or agents, in the performance of this duty, were not the fellow servants of the plaintiff, but were charged with the duty required of the defendant. Ford v. Fitchburg Railroad, 110 Mass. 240. Holden v. Fitchburg Railroad, 129 Mass. 268. Hough v. Railway, 100 U.S. 213.

If the engine was suitable for the work for which it was designed to be used and was used, the defendant was not responsible to the plaintiff for an injury resulting from the manner in which it was used by his fellow servants.

It appeared in evidence, that the engine in question was new when it came on the road of the defendant, some three or four months before the accident; that, during all the time it had been on the road, it was used as a "switcher"; that it had on the forward end a draw-bar or bunter, some of the witnesses giving it one name and some the other, the device serving the double purpose of draw-bar and bunter. The only defect claimed in the engine was, that this draw-bar was too low for the purpose for which it was designed and used, so that it was liable to pass under the draw-bar or bunter of the car to which it was to be attached, and did so on the occasion of the accident. Whether the draw-bar was too low, and, if so, whether that rendered the engine unsuitable for the work for which it was designed and used, were questions for the jury.

The plaintiff, by engaging in the work he was doing, took all the risks ordinarily incident to that work. He was bound to exercise such care for his own protection as the kind of work in which he was engaged reasonably required. He had a right to assume that the defendant had furnished a suitable engine, but if he discovered, or by the exercise of ordinary care ought to have discovered, that the engine was defective because the draw-bar was too low, that was an important element in determining the degree and kind of care required of him in its use. The facts were in dispute. The testimony of the plaintiff was, in substance, that he had not been upon the engine much; that he did not think he had coupled a car to the front of the engine more than four times; that, when the engine first approached the car, it stopped ten feet from it; that he did not notice the height of the car, and did not know there was any danger that the bunter of the engine would pass under that of the car until he actually attempted to make the coupling and got hurt.

On the other hand, the engineer testified that the plaintiff had worked on the engine most of the time it had been in use; that, as the engine approached the car on the occasion in question, the plaintiff jumped out, and the bunter of the engine passed under that of the car; that he had a conversation with the plaintiff about this, and the necessity of using a crooked link, before the attempt to connect was actually made by the plaintiff. There was also other testimony bearing upon these points.

Whether the plaintiff was in the exercise of due care, under all the facts and circumstances which might be found to be established by the evidence, was for the jury. The court was not to pass upon the weight of the evidence, but only to determine whether there was evidence which should be submitted to the jury. Forsyth v. Hooper, 11 Allen 419.

For these reasons, we are of opinion that the defendant was not entitled to the first or second instruction requested. ^[*] The fourth instruction requested should not have been given. It does not include the element of knowledge of any difference in height, on the part of the person giving the direction, which would seem to be essential to render him careless. If it had included such knowledge, in giving it the court must practically have held that an employer would not be liable for an injury resulting from the use of an unsuitable machine, which he had negligently furnished for use, unless he personally gave the direction to use it. Cayzer v. Taylor, 10 Gray 274.

The third and fifth requests raise substantially the same question, and may be considered together.

We are of opinion that the defendant was not entitled to have these instructions given without qualification. We do not think the existence of the facts supposed would show the...