Spaulding v. W.N. Flynt Granite Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HOLMES, J.
• Citation: Spaulding v. W.N. Flynt Granite Co., 159 Mass. 587, 34 N.E. 1134 (Mass. 1893)
• Decision Date: 19 October 1893
• Parties: SPAULDING v. W.N. FLYNT GRANITE CO.

159 Mass. 587

34 N.E. 1134

SPAULDING v. W.N. FLYNT GRANITE CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 19, 1893

COUNSEL

Robinson & Robinson, for plaintiff.

J.B Carroll, for defendant.

OPINION

HOLMES, J.

This is an action for personal injuries. The plaintiff was a workman employed by the defendant, and was directed to run a car loaded with stone down from the defendant's quarry to where the car would be taken away by an engine on the Boston & Albany Railroad. The track over which he was to pass descended gradually, so that the car moved by gravitation. After starting, the plaintiff found that he could not control the car with the brake. It ran away with him, ran into some other cars, and the plaintiff's foot was crushed by the stone. The plaintiff's evidence tended to show that the brake was defective. The defense mainly relied on is that the car was furnished by the Boston & Albany Railroad; that the defendant had to take what it could get; and therefore that it ought not to be held to the rule as to furnishing proper instrumentalities, but only to the duty of inspection, as in the case of cars received from connecting lines to be forwarded. Mackin v. Railroad Co., 135 Mass. 20]; Keith v. New Haven & Northampton Co., 140 Mass. 175, 180, 3 N.E. 28. The judge before whom the case was tried ruled otherwise, and the defendant excepted. There are also the usual suggestions that the plaintiff was negligent, or took the risk, and that the defendant used due care.

There was no ground for ruling that the plaintiff was negligent. It would be absurd to require him to abandon his post and jump from the car at the first instant that he saw that there was trouble with the brake. If at any later moment it would have been prudent to do so, the jury might have found that, as he testified, his foot was so caught that he could not. We cannot say that it necessarily was negligent to let the brake off a little at the very beginning, even if the car moved gradually before the plaintiff did so, but the defendant's witnesses testified that the car did not move until the brake was loosed. If the brake was defective, and the rule as to furnishing proper instrumentalities applies there was evidence that the defendant had not satisfied that rule, but might have discovered the defect. If it should be found not to have done so, of course the plaintiff did not take the risk of its negligence. The jury...