Lothrop v. Fitchburg R. Co.

• Decision Date: 02 January 1890
• Parties: LOTHROP v. FITCHBURG R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 423

23 N.E. 227

LOTHROP v. FITCHBURG R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

January 2, 1890

COUNSEL

A. Norcross H.C. Hartwell, and C.F. Baker, for plaintiff.

George A. Torrey, for defendant.

OPINION FIELD, J.

This is an action brought under St.1887, c. 270, § 2, by the next of kin of a brakeman employed by the defendant, who was killed while engaged in shackling two cars loaded with lumber, upon the defendant's railroad.

The first question is whether there was evidence for the jury that the brakeman was "in the exercise of due care and diligence at the time." Section 1, Id. He was about 22 years old, and had been employed as freight brakeman by the defendant from October 26, 1887, to the time of his death, which was on February 3, 1888. It was a part of his duty, as freight brakeman, to shackle and unshackle freight-cars. Certain sticks of lumber on two open flat freight-cars standing on the defendant's track, about six feet apart, projected over the opposite ends of the cars. The engineer, in making up the train, backed it, with one of these cars attached at the rear, until this car came in contact with the other, to which it was to be shackled; and in making the shackle, the head of the brakeman was caught between the ends of two projecting timbers, and he was instantly killed. This happened about noon, on a clear day. "The deceased made this shackling from the north side of the track, which was the side on which he was working, and from which he had made the other shacklings on this train. Upon the south side of said cars the lumber did not project and there was nothing to prevent the deceased from crossing over, and making the shackling on that side." He was acting under the general orders of the conductor of the train to do the shackling on the cars standing on this track; but the conductor "gave him no special directions to make the particular shackle which caused the injury complained of but such cars were a part of the cars standing on said track and it was the duty of the deceased to do this particular shackle, under the aforesaid general orders of the conductor." The plaintiff's counsel admitted, at the request of the defendant, "that lumber and rails are frequently transported over railroads, with ends "projecting beyond the cars, but such is a dangerous way of loading, and that in such cases shackling must be and is made by the brakeman's stooping down below the projecting timbers or rails. The deceased brakeman might have safely shackled these cars in that way." The general rule of law is that when the danger is obvious, and is of such a nature that it can be appreciated and understood by the servant as well as by the master, or by anyone else, and when the servant has as good an opportunity as the master, or any one else, of seeing what the danger is, and is permitted to do his work in his own way, and can avoid the danger by the exercise of care, the servant cannot recover against the master for injuries received in consequence of the condition of things which constituted the danger. Williams v. Churchill, 137 Mass. 243; Moulton v. Gage, 138 Mass. 390; Leary v. Railroad Co., 139 Mass. 580, 2 N.E. 115; Russell v. Tillotson, 140 Mass. 201, 4 N.E. 231; Haley v. Case, 142 Mass. 316, 7 N.E. 877; Linch v. Manufacturing Co., 143 Mass. 206, 9 N.E. 728; Ciriack v. Woolen Co., 146 Mass. 182, 15 N.E. 579; Scanlon v. Railroad Co., 147 Mass. 484, 18 N.E. 209; Wood v Locke, 147 Mass. 604, 18 N.E. 578, Dunlap v. Manufacturing Co., 148 Mass. 51, 18 N.E. 599; Crowley v. Pacific Mills, 148 Mass. 228, ...