Young v. Boston & M.R.r.

• Decision Date: 30 March 1897
• Citation: 168 Mass. 219,46 N.E. 624
• Parties: YOUNG v. BOSTON & M.R.R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 219

46 N.E. 624

YOUNG v. BOSTON & M.R.R.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1897

COUNSEL

S.A. Fuller, for plaintiff.

Solomon Lincoln and Thomas Hunt, for defendant.

OPINION

KNOWLTON J.

We may assume in favor of the plaintiff that there was evidence from which the jury might have found that his intestate was in the exercise of due care. If we assume, without deciding, that a liability under chapter 71 of the Laws of New Hampshire of 1887 could be enforced in this commonwealth under the doctrine stated in Higgins v. Railroad Co., 155 Mass. 176, 29 N.E. 534, we come to the question whether there was evidence of negligence on the part of the defendant. The accident happened in New Hampshire, and, as the statutes of 1887 (chapter 270) and 1893 (chapter 359) have no extraterritorial force, they cannot be invoked by the plaintiff. The plaintiff's intestate was killed in consequence of the breaking apart of a freight train, and there was evidence that, at the point of separation "there was an old, rusty link. About three-quarters of it on one side had rusted,--and old rust, from six to seven months old,--and the other was a new break." The negligent use of this link is the only fault charged against the defendant. The question is whether this was negligence of officers or agents, for which the corporation is liable to an employé, or negligence of a servant, for which the defendant is not liable to his fellow servant. One of the witnesses called by the plaintiff testified that the defendant furnished a sufficient number of links for use in making up this train, and that at the time of the accident there were spare links in the caboose and on the engine, and that it was the duty of the plaintiff's intestate, who was the conductor of the train, to see that there was a supply of links on his train. Another of his witnesses testified that he did not know that a conductor had any duty to have spare links on his train, but that the defendant had a sufficient number of links for use at Nashua, where the train was made up. There was no evidence that the company failed to supply all the links that were needed for coupling its cars at the places where the trains were made up. These links are not permanently fastened to the cars, but may be taken out and put in by the hand, as trains are divided or made up. They are furnished for use by trainmen, and by those who make up the trains in the freight yards. These men are fellow servants of the conductors of...