White v. Fitchburg Railroad , 136 Mass. 321 ( 1884 )

Colburn, J.

As a carrier of passengers, the defendant was bound, in the management of its cars and trains, and in making connections of cars, to exercise the highest degree of care which it could reasonably, to prevent such injuries to its passengers as human care and forethought could avert. MeElroy v. Nashua Lowell Railroad, 4 Cush. 400. Warren v. Fitchburg Railroad, 8 Allen, 227. Eaton v. Boston & Lowell Railroad, 11 Allen, 500. The defendant was responsible for the method it adopted, or approved, for connecting with its trains the cars of the Worcester and Nashua Railroad. It was for the jury to determine whether the method adopted was safe and prudent. They had all the facts before them, and, among others, the descending grade, the distance that the moving car had to run by the impetus given it by the train from which it was detached, and the momentum resulting from the descending grade of the tracks; and the fact that, on previous occasions, violent collisions had occurred. They could form an opinion as to how far the speed of the car was liable to be varied at different times under the conditions stated, and by the force and direction of the wind; and how far it was safe and prudent to rely upon the judgment and skill of a brakeman upon the moving car, under all these circumstances, with the effect of the weather upon the brakes, wheels, and track, to bring the cars together with sufficient force to make the automatic connection, but not so as to cause damage.

Railroads have been so long in use, are so common and commonly used by the public, and the different methods adopted of managing trains and connecting cars and trains are so far matters of common observation, knowledge, and experience, that, when all the facts were before them, the jury were competent to judge, without the aid of expert testimony, whether the method adopted in this case to accomplish the purpose intended was safe and prudent compared with other methods which might have been adopted to accomplish the same purpose. It was for the jury to determine how far the opinions of experts, which were in the ease without objection, should influence their judgments, and how far the experts were liable to be biased by the fact that they had adopted or sanctioned the method in question, especially when they admit that a great difference of opinion exists among railroad experts as to the safety of the method adopted in this case compared with other methods.

Whether the use of what is termed a “ flying switch” is safe and prudent, in any given case, is not a question of law, but of fact, to be determined according to the conditions and circumstances existing in that case. We cannot say that, under the evidence and circumstances of this case, the jury were not warranted in finding the defendant to have been negligent. It is not questioned that the brakeman on the moving car was negligent, and that the jury were warranted in finding that the Worcester and Nashua Railroad Company, in whose employ he was, its servants and agents, were guilty of negligence. The brakeman, though in the employ of the Worcester and Nashua Railroad Company, was engaged in a service which the two corporations had agreed should be performed for their joint benefit. He was acting for the defendant, with its express or implied approval, as well .as for the other corporation, and the defendant must be held responsible to the plaintiff, whom it had contracted to carry safely, for an injury resulting from the negligence of this brakeman, to which it had voluntarily exposed him. Eaton v. Boston & Lowell Railroad, ubi supra. Great Western Railway v. Blake, 7 H. & N. 987. Thomas v. Rhymney Railway, L. R. 6 Q. B. 266.

Judgment on the verdict.