McLeod v. New York, N.H. & H.R. Co.
| Decision Date | 03 April 1906 |
| Citation | 77 N.E. 715,191 Mass. 389 |
| Parties | McLEOD v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. J. Feely and Roger Clapp, for plaintiff.
Choate Hall & Stewart, for defendant.
This is an action by an administrator to recover for conscious suffering and the death of his intestate. The plaintiff's intestate was employed by the defendant as a freight brakeman, on the Monday preceding the Monday on which he was killed. When employed he had had no experience on railroads. When he was killed he was standing on the step of an open flat car, facing the car. The car was loaded with ashes, and was being pushed down to an ash dump in the Norwood yard of the defendant corporation. The plaintiff's intestate was killed by being knocked off by the corner of a building which was 2 feet and 7 or 8 inches from the nearest rail of the track in question, and 'the edges of the corners of the building * * * were worn off by the cars hitting it at a distance of four or five feet from the ground.' The building in question was a permanent building, which had been in the same position with relation to the track for many years. The plaintiff's intestate made a written application for the position of brakeman, which ended in these words: 'If this application is granted, and I am employed as a freight brakeman, I shall enter upon such employment with a full understanding of the risks attending the same, all of which I will deliberately assume, and I will, as soon as possible, make a careful examination of the railroad tracks and yards where my duty calls me, and note their condition and position, and the position of all signal wires and poles, telegraph poles, switches, bridges, and other objects that are near the track.'
The evidence showed that the plaintiff's intestate had been by the building in question six times on the day in question and it was on the seventh time that he was killed; and further, that on the proceding Monday (the first day of his employment) he had been working in the same yard and had been on the ash car when it was taken past the building in question to the dump. There was evidence from one of the plaintiff's witnesses that the intestate had been warned of the danger of this particular building, but the plaintiff put in a contradictory statement made by that witness. The case, therefore, is not a case where on the undisputed facts the intestate assumed the risk because he knew of it. But, in our opinion, the risk was one which the plaintiff's intestate assumed by entering on the employment in question. There are a number of cases in this commonwealth where it has been held that a railroad employé takes the risk of permanent structures near the track, at least when they are not unusually near, leaving open the question whether the risk is assumed if the structure is unusually near. In some of the opinions the statement might be thought to go further, but with the exception of Scanlon v. Boston & Albany R. R., 147 Mass. 484, 18 N.E. 209, 9 Am. St. Rep. 733, we do not think that it does. Thain v. Old Colony R. R., 161 Mass. 353, 37 N.E. 309; Vining v. New York & New England Railroad, 167 Mass. 539, 46 N.E. 117; Ryan v. New York, New Haven & Hartford R. R., 169 Mass. 267, 47 N.E. 877; Quinn v. New York, New Haven & Hartford R. R., 175 Mass. 150, 55 N.E. 891; Donahue v. Boston & Maine R. R., 178 Mass. 251, 255, 59 N.E. 663; Fearns v. New York, New Haven & Hartford R. R., 186 Mass. 529, 72 N.E. 68. The question so left open is now up for decision, and we are of opinion that the qualification is not material, and that the employé assumed the risk, even if the structure in question is unusually near to the track.
When the defendant invited the plaintiff's intestate to work for it, the invitation given was an invitation to work on its railroad as constructed. In inviting him to work for it the defendant did not...
To continue reading
Request your trial