Mackin v. Boston & Albany Railroad

• Decision Date: 20 June 1883
• Citation: 135 Mass. 201
• Parties: James Mackin v. Boston and Albany Railroad
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 201

James Mackin v. Boston and Albany Railroad

Supreme Court of Massachusetts

June 20, 1883

[Syllabus Material] [Syllabus Material]

Suffolk. Tort, for personal injuries received by a brakeman, while in the defendant's employ.

At the trial in the Superior Court, before Rockwell, J., the plaintiff's evidence tended to show that on May 19, 1881 he was the rear brakeman on a train of freight cars which was at Brookline, about two miles from the freight yard of the defendant at Boston; that it was the plaintiff's duty to shackle certain cars, standing on a side track, to the train that he did this, and then walked towards the rear of the train, and, after the train started, attempted to get on the rear car by means of a ladder at its forward end; that, before taking hold of the ladder, he noticed that the lower round was gone; that he then took hold of the round next above, and attempted to draw himself up, but before he got hold of another round with his other hand, the round he had hold of gave way, and he was thrown to the track and received the injuries complained of; that the ladder was made of separate irons, the ends of which were screwed to the car, and the part between projected from the face of the car, so that it could be grasped by the hand, or afford a resting-place for the foot; that the plaintiff at the time of the accident was properly ascending the ladder in the discharge of his duty; that, after the accident, the place where the iron had been was examined, and it was found that the screw was gone, the screwhole was twice as large as it should be, and the wood was decayed. Two witnesses testified that the car looked like an old car, and one of them that it had the appearance of a very old car.

There was no evidence, nor did the plaintiff contend, that the car was not originally constructed of proper materials. It went to Brookline from Boston, over a branch of the defendant's road, loaded with flour, and was empty at the time of the accident, and was about to be drawn back to Boston under the defendant's management.

The plaintiff testified that he was aware, while in the employ of the defendant, that many freight cars came upon the road which were not owned by the defendant, and that, in the ordinary course of business, many such foreign cars were drawn over the road as part of the defendant's freight trains.

The defendant put in evidence tending to show the following facts: The car in question was not owned by the defendant, but by the Merchants' Despatch Transportation Company, a stock company or association owning a large number of freight cars, which go into all parts of the country. It came upon the defendant's road at East Albany, (otherwise called Greenbush,) New York, from the West, and left there for Boston on May 10, 1881, and left Boston for Brookline on May 13th. Throughout the month of May, 1881, as well as before and since, the defendant had a sufficient force of competent and suitable inspectors and repairers at East Albany, whose duty it was to inspect every freight car which arrived there from the West, and to cause every defective car to be repaired before it left the station to go eastward. These inspectors were on duty when the car in question reached East Albany, and while it remained there. A like force of inspectors was, during that month, as well as before and since, maintained by the defendant, at each of the following stations on its road, namely, Pittsfield, Springfield, Worcester, and Boston; and their duty was to inspect every car which arrived at their respective station, and see that every defective car was repaired before it left the station; and at each of the places and stations above named, abundant and suitable materials and means for making repairs on cars were provided. All these inspectors and repairers were on duty, under the supervision of competent and suitable foremen, hired for the purpose, when the car arrived and remained at each of the stations named, and when it left such station. These employees of the defendant were selected for the work on account of their proved fitness for it; and, if they all did their duty, no car passed either station without proper inspection, nor without first receiving all the repairs which such inspection showed that it needed.

It was shown that from two hundred to five hundred cars passed Albany going eastward on the defendant's road daily, and on one day there were seven hundred and fifty.

The car was repaired at Boston the day after the accident; and the man who repaired it testified that all it needed was the putting on of one iron and the tightening of one or two screws. He did not remember whether the iron was fastened by him in the place whence it had pulled out, or was moved to a new place. He testified that the ends of the iron, through a hole in the middle of which the screw--a half-inch screw--passed, were as large as a half-dollar. He added, "It is my impression that the hole was not solid."

The defendant's business has been for years such as to require that the defendant should draw over its road large numbers of cars owned by others,...