Marshall v. Boston & Worcester Street R. Co.

• Citation: 81 N.E. 195,195 Mass. 284
• Parties: MARSHALL v. BOSTON & W. ST. RY. CO.
• Decision Date: 14 May 1907
• Court: United States State Supreme Judicial Court of Massachusetts

195 Mass. 284

81 N.E. 195

MARSHALL v. BOSTON & W. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 14, 1907

COUNSEL

J. J. Shaughnessy and F. P. O'Donnell, for plaintiff.

Guy Murchie, for defendant.

OPINION

BRALEY J.

The plaintiff while riding as a passenger, was injured by the derailment of the defendant's car, owing to a wheel on one of the trucks being loose. In the operation of its road the defendant bought of a reputable manufacturer the cars with their equipment, and such appliances as might be required to maintain them in suitable repair. By the process of manufacture the wheels were forced on to the axle under such a pressure that if properly adjusted they remained rigid, and when in use instead of revolving on the axle as a center, turned with it. Upon purchase they were placed under the car, which then was run over the track to ascertain if the wheels worked properly, and the gauge corresponded. But no dynamic test was made to determine if they were solidly attached, as the defendant possessed no suitable apparatus for this purpose. It appeared, however, that a practical test by shutting off the motors separately could have been applied, which would have disclosed the defect. Having been in use for two days the accident occurred, and upon examination fine pieces of iron filings were discovered at the point of revolution, and upon measurement the distance between the wheels was found to be somewhat less than the space between the rails. The report states, without describing the details, that the defendant inspected the wheels and axle after they were attached, but did not apply the test by motor, and until derailment it had no actual knowledge that the wheel was loose. Upon these facts, over which there does not seem to have been any serious dispute the question presented by the report is, what degree of care the defendant was required to exercise in the selection maintenance, and use of its rolling stock, and whether the instructions given as to this duty correctly stated the rule. It often has been said that a common carrier of passengers does not warrant that the roadbed, engines, cars, or appliances used shall be perfect, for by the contract of transportation he does not become an insurer of the safety of the passenger. Ingalls v. Bills, 9 Metc. 1, 15, 43 Am. Dec. 346; Warren v. Fitchburg Railroad Co., 8 Allen, 227, 85 Am. Dec. 700. But while the absolute soundness of the equipment used was not guarantied, the defendant did undertake to provide and maintain suitable cars. Galligan v. Old Colony St. Ry. Co., 182 Mass. 211, 214, 215, 65 N.E. 48. The duty imposed was defined in Ingalls v. Bills, 9, Metc. 1, 15, 43 Am. Dec. 346, as consisting of the 'utmost care and diligence,' and this definition generally has been followed in this country, although the form in which it is expressed may have varied. See Hutchinson on Carriers (3d Ed.) §§ 395, 396, for a collection of the cases. This statement of the rule, however, it may be phrased, does not mean as pointed out in Dodge v. Bangor Steamship Co., 148 Mass. 207, 218, 19 N.E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541, that the officers, and agents of the defendant, should have exercised the greatest possible degree of foresight of which men are capable. See Sawyer v. Hannibal & St. Joseph Railroad Co., 37 Mo. 240, 90 Am. Dec. 382. But in transporting the plaintiff, the defendant was required by the contract, even if the defect was subsequently shown to be hidden, to use the highest degree of active diligence commensurate with the mode of transportation employed, and the practical operation of its railway. Ingalls v. Bills, ubi supra; Gaynor v. Old Colony & Newport R. R. Co., 100 Mass. 208, 97 Am. Dec. 96; Galligan v. Old Colony St. Ry. Co., ubi supra; Libby v. Maine Central R. R. Co., 85 Me. 34, 26 A. 943, 20 L. R. A. 812; Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141; Readhead v. Midland Ry. Co., L. R. 2 Q. B. 412, 4 Q. B. 392, 393; Manser v. Eastern Counties Ry. Co., 3 L. T. R. (N. S.) 585,...