Murphy v. New York, N.H. & H.R. Co.
| Decision Date | 22 November 1904 |
| Citation | 72 N.E. 330,187 Mass. 18 |
| Parties | MURPHY v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John H. S. Hunt, Edwd. H. O'Brien, and Thayer & Perry, for plaintiff.
Arthur P. Rugg, for defendant.
The plaintiff finally relies on the third count of the declaration to sustain his cause of action, and the questions presented are whether there was any evidence of the defendant's negligence or of the plaintiff's due care which should have been submitted to the jury. It appeared that Mulvaney was the section foreman of the defendant having charge of a gang of five men, including the plaintiff whose duty it was under his instructions to unload or transfer freight from one car to another, while he selected the cars that were to be unloaded, and checked the freight as it was transferred. This was sufficient evidence for the consideration of the jury that he was intrusted by the defendant with superintendence over the plaintiff within the meaning of the statute, and for whose negligence it would be responsible. Mahoney v. New York & New England Railroad Co., 160 Mass. 573, 36 N.E. 588.
In the performance of this work by the men a movable platform called a 'brow,' was placed between and formed a bridge from one car to the other, over which the freight was wheeled in trucks. The brow in use at the time of the accident was provided with curved hooks at one end, with a cleat on the under edge. These hooks were intended to stick into the floor of the car, thus preventing the brow from slipping, while the opposite end ran to a beveled edge. There was evidence that the usual way of using it was to place the end with hooks on the car to which the freight was to be wheeled, otherwise the loaded truck striking against the raised end as it rested on the hooks might cause it to slide from the car. When the brow used by the plaintiff had been placed in position after the cars had been designated by Mulvaney, the raised end rested on the car to be unloaded, but before any work had been done one of the men, discovering its situation, was about to reverse it, when Mulvaney said 'the brow was all right, let it alone,' and because of this order no change was made. The method of doing the work, as well as when it should be done, was to be determined by Mulvaney, and it became his duty, when he ordered the plaintiff, with the other men, to go to work unloading freight, to use reasonable care to prevent his being exposed to the danger that the brow might slip from the car when struck by the loaded truck as it rose from the level of the floor of the car to the top of the brow. It could have been found that reversing the brow would have placed it properly, and prevented it from slipping from this cause, as the beveled edge would...
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