Burns v. Boston & Lowell Railroad , 101 Mass. 50 ( 1869 )

Colt, J.

In the opinion of a majority of the court there is nothing in this bill of exceptions, which discloses the existence of any relation, by contract or otherwise, between the parties, under which, in law, there was any peculiar obligation or duty imposed upon the defendants not to move their train upon the tracks on their own premises as their own necessities or convenience required. For anything that appears affirmatively, it was the exclusive business of the defendants’ agents to place the cars in a position to be loaded by the owners of merchandise. The contract with Norcross & Company did not give the plaintiff a right to go upon the side track and assist in moving the car down to a place to be loaded, although the car so moved was designed for the use of Norcross & Company. The plaintiff was not requested by the agents of the defendants to go upon the track for such purpose, nor does it appear that they had any notice that he was there; and it would seem that in going there he was a mere trespasser. After the car had been placed in position and disconnected from the train to which it had been attached, and Norcross & Company had commenced loading it under the arrangement with them, the defendants would indeed be held to such prudence and care in the use of the track as would be consistent with the safety of those engaged in loading it. Such was not this case ; and if it were, it does not appear that in loading the car it was proper or necessary for the plaintiff to place himself upon the track between the car which he was loading and the rear car of a train to which an engine was attached. Ordinarily it would not be necessary or proper. The facts, in the opinion of a majority of the court, do not, as reasonably construed, show a case free from that negligence on the part of the plaintiff which comes within the common knowledge and experience of all men. The plaintiff was not in the exercise of ordinary care and prudence when he entered upon the track, uncoupled a car from a train to which an engine was attached, without the authority or knowledge of those in charge of the train, and placing himself between the cars, directly behind the hunter, proceeded to move it along the track. His want of knowledge that there was an engine upon the track implies want of care, for it is to be inferred that he might have seen it if he had looked.

There is no error apparent upon these exceptions in the ruling of the court below that in law the plaintiff was not in the exercise of due care. Meesel v. Lynn & Boston Railroad Co. 8 Allen, 234. Gavett v. Manchester & Lawrence Railroad Co. 16 Gray, 501. Todd v. Old Colony & Fall River Railroad Co. 3 Allen, 18. Exceptions overruled.