Smith v. New England Cotton Yarn Co.

• Decision Date: 29 November 1916
• Citation: 225 Mass. 287,114 N.E. 353
• Parties: SMITH v. NEW ENGLAND COTTON YARN CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 287

114 N.E. 353

SMITH

v.NEW ENGLAND COTTON YARN CO.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 29, 1916.

Exceptions from Superior Court, Bristol County; Hugo A. Dubugue, Judge.

Action by Thomas F. Smith against the New England Cotton Yarn Company. There was a verdict for plaintiff, and defendant excepts. Exceptions overruled.

Defendant's fifth request, as modified and given, was:

‘If the defendant had no reason to anticipate that there was occasion to go back of that fire door, of course the defendant isn't liable, but on that you have a right to consider the layout of the track, what had been done before, why or how it happened that the car went back. If the difficulty with coupling the car is one of the things that are incident to the usual work of coupling cars then, of course, that might be anticipated by the defendant.’

H. F. Hathaway, of Taunton (J. P. Dunn, Jr., and J. E. Warner, both of Taunton, with him), for plaintiff.

Jennings & Brayton, of Fall River, for defendant.

BRALEY, J.

The jury would have been warranted in finding, that when injured by falling into the hole, slot or channel in the platform of the defendant's cotton storehouse, the plaintiff was in the performance of his duties as conductor of the switcher hauling cars therefrom, by direction of the freight agent of the railroad company his employer, who had been requested by the defendant to remove the cars on the spur track inside the house so that it could run in more cars for use in its business. The duty imposed on the defendant as an invitor under such circumstances was defined in Carleton v. Franconia Iron & Steel Co., 99 Mass. 216, 217:

‘The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the land or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist and has given them no notice of.’

The rule as thus defined has been followed in Coombs v. New Bedford Cordage Co., 102 Mass. 572, 587, 588,3 Am. Rep. 506;Hart v. Cole, 156 Mass. 475, 31 N. E. 644,16 L. R. A. 557;McNee v. Coburn Trolley Track Co., 170 Mass. 283, 284, 49 N. E. 437;Garfield & Proctor Coal Co. v. Rockport Lime Co., 184 Mass. 60, 63, 67 N. E. 863,61 L. R. A. 946, 100 Am. St. Rep. 543;Pickwick v. McCauliff, 193 Mass. 70, 74, 78 N. E. 730,8 Ann. Cas. 1041;Shaw v. Odgen, 214 Mass. 475, 476, 102 N. E. 61.The jury could find that the defendant while familiar with the nature of the work of taking out cars by a switching engine, also knew that the operation must be carried on within the limits of the spur track located on its own premises, which ‘had a capacity of three cars outside of the building.’ It appears, and the jury could find from the plaintiff's evidence, that the engine had been coupled to three cars standing ‘outside,’ and when he ‘motioned for it to go ahead * * * the three cars were about two or three feet from the fourth or lone car standing inside of the building.’ The cars were equipped with automatic ‘self-couplings,’ and this car by its failure to unite having been forced further ‘into the building,’ it could have been found that the conductor or those in charge, acting with ordinary care, would endeavor to ascertain ‘what was on track back of this car’ before making another attempt ‘to make a hitch.’ The space between the top of the roof of the cars and the ‘place on the building on which the outside doors run’ was not over three feet, while the platform whose height corresponded with the level of the floor of an ordinary freight car extended the entire length of the track. If when the car failed to couple, the conductor under the orders of the freight agent, his superior, stepped to the platform to investigate whether the track inside was clear, ‘before I hit that car again,’ his use of the platform as a feasible means of communication could be found to be as natural and probable under the circumstances, as if the area traversed had been left open and unoccupied. It is not contended that before he was injured the plaintiff knew of the sunken slot or channel twelve inches in width where the fire door ran, which if left unguarded the jury could...