Sweat v. Boston & A.R. Co.

• Decision Date: 10 May 1892
• Citation: 156 Mass. 284,31 N.E. 296
• Parties: SWEAT v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 284

31 N.E. 296

SWEAT v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 10, 1892

COUNSEL

F.E Snow, for plaintiff.

S Hoar, for defendant.

OPINION

LATHROP, J.

This is an action at common law for injuries sustained by the plaintiff, a brakeman on a freight train, while in the defendant's employ. At about 8 o'clock in the evening of September 6, 1887, the train, while on its way from Worcester to Boston, was stopped, and the forward part of the train was drawn by the locomotive engine into the defendant's yard at Framingham. Some of the cars were left there, and the locomotive engine, with five cars, started to go back to the train, which had been left standing on the main track. The front car of this train was a little west of the end of a wooden boxing, made to protect the rods and wires which operated the interlocking system of switches at this point. This boxing was about 375 feet long, and 2 feet and 7 inches wide, and was parallel to the track. The top of it was formed of boards six or seven inches wide, and one inch and a half thick, laid crosswise. The boards projected over the joists on which they were laid about three quarters of an inch to an inch on each side. The top of the boxing was about half an inch above the top of the rail. When the boxing was built the boards on the top were nailed down, except certain lids, consisting of more than one board each. These lids were not nailed down, but were secured by cleats put on the under side of them, so that the lids would fit tightly, and would not come off without being lifted up. At the easterly end of the boxing was a tower, used by the signal men. While the engine was backing the five cars towards the cars which had been left standing, the plaintiff, according to his testimony, went down a ladder on the side of one of the five cars, and jumped onto the top of the boxing and ran along by the side of the cars, when, stepping on the end of a loose board, he was thrown under the moving train and was injured. There was evidence that it was the plaintiff's duty to get to the stationary cars before the moving cars reached them, for the purpose of coupling the two parts of the train together.

At the trial the top of the boxing was called a "platform;" and the defendant's first exception is to the admission of evidence that the platform was a proper place for the plaintiff to run on. We need not consider whether the questions which were allowed to be put are open to the objection that they called for the opinion of the witnesses on a matter concerning which the jury could not properly be aided by such opinions, because the defendant's counsel, in his closing argument, stated that he should not contend that the boxing or planking was not a place where brakemen were likely to run in the performance of their duties; or that it was not convenient for thm to run there; or that the defendant had not reason to contemplate that the brakemen would so us it. These admissions rendered the testimony of the witnesses immaterial, and the exception must be considered as waived.

The next exception of the defendant relates to the admission of evidence of loose boards being found in the platform at a point other than that at which the accident happened, if the plaintiff is to be held, in respect to the place, to the account given by him at the trial, as the defendant contends this account should be construed. The plaintiff there testified that he jumped off the car by the tower, with his lantern in his hand; that he ran about 30 feet, "he should say," and stepped on the end of a loose board and was thrown under the train; that his right hand was caught, and he cried out, and was dragged about 30 feet, as near as he could judge; that he was kind of stunned; that he had never measured the platform, and did not know anything accurately about it, but should think it was about 150 feet long. This account does not seem to us to fix the place with accuracy. There was, on the other hand, the testimony of another brakeman that he picked the plaintiff up 25 or 30 feet easterly from the westerly end of the platform, and found his lantern within 3 or 4 feet from him. This witness also testified that he should say the platform was 100 or 150 feet long. There was also other evidence put in by the plaintiff tending to show that the accident was near the westerly end of the platform. Indeed, the defendant's theory of the accident was that it was caused by the plaintiff stepping off the westerly end of the platform. Upon this state of the evidence we do not think that the plaintiff is bound by his estimate that the place where he fell was within 30 feet of the tower. The accident took place after...