Turner v. Boston & M.R. Co.

• Decision Date: 02 March 1893
• Citation: 158 Mass. 261,33 N.E. 520
• Parties: TURNER v. BOSTON & M.R. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 261

33 N.E. 520

TURNER v. BOSTON & M.R. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1893

Plaintiff, a brakeman in the employ of the Fitchburg Railroad Company, was injured by an unblocked frog on a side track or switch of the Boston & Maine Railroad Company at a place where the two roads connected for the interchange of cars, and while engaged in delivering a car from the train on which he was employed to the Boston & Maine Railroad. The frog on which the injury occurred was within the location of the Fitchburg Railroad, but the track in which it was placed was in charge of, and maintained by, the Boston & Maine Railroad.

COUNSEL

Robert M. Morse, Jr., and Charles E. Hellier, for plaintiff.

Solomon Lincoln and Thomas Hunt, for defendant.

OPINION

ALLEN J.

1. The defendant contends that there was no evidence to warrant the jury in finding that the plaintiff was rightfully upon the defendant's tracks, or, at most, that when there he had any other rights than those of a licensee. This view cannot be sustained. There was evidence tending to show that it was customary for the Fitchburg Railroad Company to deliver cars to the defendant upon the track in question in the usual course of business between the two railroad companies, and that on the occasion of the accident a car had been so delivered, but was not pushed quite far enough upon it. It was proper for the Fitchburg Railroad Company to deliver the car in a suitable place on the defendant's track, even if it was not its duty to do so and in doing so that company and its servants, of whom the plaintiff was one, could not be considered as bare licensees. They were engaged in making a proper delivery of the car, in the regular course of the business of the two railroad companies, and the rules of law applicable to mere licensees do not apply to the plaintiff. Plummer v. Dill, 156 Mass. ----, 31 N.E. 128; Sawyer v. Railroad Co., 27 Vt. 370; Merrill v. Railroad Co., 54 Vt. 200; Smith v. Railroad Co., 19 N.Y. 127.

2. The defendant further contends that there was no evidence of negligence on its part. It was not in dispute that the frog was unblocked at the time of the accident. It was also in evidence that the defendant had assumed the duty of blocking all the frogs, and keeping them blocked, for the safety of its own employes. The defendant contended that it owed no duty at all to the plaintiff in respect to the frog, and that he had no right to be on the track, either growing out of the customary mode of doing business, or otherwise. This view, as already said, cannot avail, because the plaintiff did not stand as a bare licensee. He therefore had a right to expect that some precaution for his safety should be taken. If the defendant owed any duty at all to the plaintiff in this respect, no request was made to have the measure of this duty defined, and no exception was taken to the instructions which were given in respect to it. We do not, however, see that the instructions which were given imposed too heavy a duty upon the defendant. For the safety of its own employes, at least by St.1886, c. 120, it was made the duty of the defendant "to fill or block the frogs, switches, and guard rails on its track, with the exception of guard rails on bridges, so as to prevent the feet of employes from being caught therein." If leaving frogs unblocked was dangerous to employes of the defendant, it might be inferred that it was not safe for the plaintiff. Courts may take notice of the standard of safety in respect to frogs, which the legislature has fixed. This statute, we are told by counsel in argument, was not before the jury, so that at the trial the defendant had the benefit of its exclusion. But, in view of this statute, leaving the frog unblocked might be attended with danger to the plaintiff, and might, therefore, have some tendency to shows negligence on the part of the defendant; and the cases cited from other jurisdictions, where it has been held that leaving frogs unblocked is no evidence of negligence, are not applicable here. Whether leaving a frog unblocked was or was not negligence, was left to the jury, and the defendant had no right to a ruling, as matter of law, that it was not negligence.

3. The defendant further contends that there was no evidence that the defendant or its agents or servants knew, or ought to have known, that the frog was unblocked. The facts relied on by the plaintiff in opposition to this view are as follows: The frog was about 28 feet distant from the southerly end of the passenger station at Ayer Junction, where the main line of the Fitchburg Railroad is crossed by the Worcester & Nashua Division of the defendant's railroad. There was evidence from the section master in charge of the blocking of frogs at this place, from which it might be argued and found by the jury that he had not noticed for three or four days whether this frog was blocked or not. Other men under him were not called as witnesses upon this point. It was also contended at the trial, from the appearance and testimony of the section master, that he was not to be believed when he testified that he had blocked this frog shortly before the accident; and it was further argued that other frogs, near by, were also left unblocked. It was open to the plaintiff to contend that, if this frog had ever been blocked at all, it had not been in that condition recently before the accident, and, if not, that it might be inferred that the defendant, or its agents or servants, knew, or ought to have known, the fact. We do not find it stated that any distinct claim was made by the plaintiff on the ground that the defendant had failed to employ a suitable person to attend to the blocking of the frogs. If that point was in issue, it was proper for the jury. Gilman v. Railroad Co., 13 Allen, 433, 441, 443; Keith v. Northampton Co., 140 Mass. 175, 3 N.E. 28; Coffee v. Railroad Co., 155 Mass. ----, 28 N.E. 1128.

4. There was no error in permitting the plaintiff's counsel to use the photograph for the purpose of showing the condition of other frogs near by, and of arguing from it that they also were unblocked. The accident to the plaintiff happened in the evening. The photograph...