O'neil v. Keyes

• Decision Date: 24 May 1897
• Citation: 168 Mass. 517,47 N.E. 416
• Parties: O'NEIL v. KEYES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 517

47 N.E. 416

O'NEIL v. KEYES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1897

COUNSEL

S.A. Fuller and C.H. Blood, for plaintiff.

S.H Tyng and C.C. Mellen, for defendants.

OPINION

LATHROP J.

The plaintiff was in the employ of the defendants, who were contractors, engaged in the filling of a street in Boston. They had a gravel bank in Allston, and had a track half a mile long, on which they ran cars by means of a locomotive engine. The road near the bank was on a very steep grade. When the engine reached the spot where the plaintiff was, the engineer cried out: "Block her if you want her to stay!" The plaintiff took a piece of wood about three feet long, and put it behind the forward driving wheel, so that the engine would back onto the block, and stop. For some reason, which does not clearly appear, the plaintiff did not succeed in stopping the engine, but the wheel so caught the wood which he was holding that he was thrown towards the head of the engine, and he fell with one hand across the rail forward of the driving wheel. He had on a glove, which caught on a spike which projected two or three inches from one of the sleepers. The spike was about two inches from the rail towards the center of the track. Before he could extricate himself, the wheel ran over his hand, the engineer having reversed his engine. The plaintiff testified that he could have got his hand away if the spike had not been there. The spike is the defect complained of.

The sleepers used were secondhand sleepers, taken from other railroads, and in some cases the spikes which were in the sleepers were not removed when brought to the defendants. The exceptions state that the rails and sleepers, though secondhand, were suitable for the use to which they were put by the defendants. The plaintiff had blocked the engine more or less before; and he testified that some one was expected to block the driving wheel every time the engine was on that grade; that he supposed that the thing that happened to him was one of the accidents of railroading, and there was nobody excepting himself who had anything to do with controlling the blocking; that he understood perfectly the theory of blocking. It further appeared in evidence that the sagging of the track required the insertion occasionally of additional sleepers, and they were thrust in under the rails. There was no evidence when the sleeper which had...