Walsh v. New York & N.E.R. Co.

• Citation: 36 N.E. 584,160 Mass. 571
• Parties: WALSH v. NEW YORK & N.E.R. CO.
• Decision Date: 01 March 1894
• Court: United States State Supreme Judicial Court of Massachusetts

160 Mass. 571

36 N.E. 584

WALSH v. NEW YORK & N.E.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1894

COUNSEL

C.G. Fall, for plaintiff.

F.A Farnham, for defendant.

OPINION

HOLMES, J.

This is an action of tort to recover for a personal injury suffered by the plaintiff in Connecticut. The injury was caused by a broken drawbar on a foreign freight car, which did not belong to the defendant. Whether the defendant was using it, or, as we suppose, simply was forwarding it, is not stated. The plaintiff testified, and we assume, that it was customary to inspect freight trains at certain points named, and the evidence tended to show that the injury was due to the negligence of the inspectors at one of those points. In other words, the regulations of the defendant were sufficient, so far as appears, and the only wrong was the negligence of the inspector on the particular occasion, seemingly, in omitting to inspect the train. The court ruled, in substance, that under the Massachusetts decisions, if the accident had happened here, the injury would have been regarded as due to the negligence of a fellow servant, and the plaintiff could not have recovered. This was not excepted to. Mackin v Railroad Co., 135 Mass. 201, 206; Coffee v. Railroad Co., 155 Mass. 21, 24, 25, 28 N.E. 1128.

Certain extracts from the case of McElligott v. Randolph, 61 Conn. 157, 161, 162, 164, 22 A. 1094, were put in evidence. The judge ruled that the jury was authorized to find that the law of Connecticut was different from that of Massachusetts in this respect, and that if, by the law of Connecticut, the plaintiff could maintain his action there, a verdict might be found for him here. These rulings were excepted to by the defendant. With regard to the former, we have some hesitation. The extracts from the Connecticut case, taken by themselves, state nothing that might not be laid down in Massachusetts; for instance, in explaining the personal duty of a master to see that reasonable care is exercised to provide reasonably safe machinery. Ford v. Railroad Co., 110 Mass. 240, 260, is one of the cases cited as authority for the propositions. Others are Hough v. Railway Co., 100 U.S. 213, citing the same case, and Davis v. Railroad Co., 55 Vt. 84, citing and relying on Holden v. Railroad Co., 129 Mass. 268. But in McElligott v. Randolph the facts give a somewhat different complexion to the language used. The accident in that case happened in taking down a wheel, and was assumed to be due to the fact that the superintendent had gone home. Superintendence was necessary, in order that the work should be done safely; and it was held that the defendants had not done their whole duty in furnishing a competent superintendent, but that they were bound to see that oversight was exercised. The case is not exactly in point, but it seems to us that the argument is much stronger for the proposition that reasonable inspection of foreign cars is one of the duties which a railroad is bound to see performed, and that the decision affords some ground for the inference that the Connecticut courts would adopt that proposition.

If however, we assume--as was ruled, and as we do assume--that if the accident had happened in this state the plaintiff could not have recovered, it is argued that he cannot recover now. A decision in Wisconsin, and...