Perry v. Old Colony R. Co.
| Decision Date | 14 September 1895 |
| Citation | 164 Mass. 296,41 N.E. 289 |
| Parties | PERRY v. OLD COLONY R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.L Boutwell and J.E. Kelley, for plaintiff.
Benton & Choate, for defendant.
This is an action for personal injuries, brought under St.1887, c 270. There are three counts in the declaration. The first and third counts allege negligence on the part of a person intrusted with and exercising superintendence, and who was one Noyes, the foreman in charge of the roundhouse and of such repairs as were there made. The second count alleges negligence on the part of a person who had charge or control of a locomotive engine upon a railroad, and who was one Straw, the engineer of the engine on which the plaintiff was at work at the time of the injury. The evidence all comes from the plaintiff and his witnesses. It is nowhere expressly stated what was the nature of the repair which the plaintiff was sent to do upon the engine, but, from the fact that the repair principally referred to in the testimony was the grinding in of a check, we infer that that was in part, at least, what the plaintiff had to do; and we assume that Noyes knew it, either in the customary way, by a slip from the engineer, or in some other manner. It is said that when he sent the plaintiff to do the job he should have given notice to the engineer or fireman that he had been sent. But both the engineer and fireman knew that some one would be sent by the foreman to do the repair. And it hardly would seem necessary for the foreman to notify them that he had done what, in the ordinary course of things, they had every reason to expect he would do. There was nothing to show that there was anything unusual about the job, or in the manner or place of doing it. The place was dangerous, but the plaintiff knew that. He also knew that the engine would have to be blown down, if a check was ground in, and that that was done over the ashpit as commonly as anywhere. There was no negligence on the part of the foreman in failing to notify the plaintiff of what he well understood himself. There was nothing to show that it was customary, when men were sent to grind in checks to notify the engineer or fireman, or anybody else, of the fact, and that they must be careful about blowing down, or that it had ever been done before, or that anything was omitted, in this case, on which the men habitually relied, or had a right to rely. There was testimony that the workmen looked out for themselves, as they needs ...
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