Whitmore v. Boston & Maine Railroad , 150 Mass. 477 ( 1890 )

C. Allen, J.

The bill of exceptions finds that the plaintiff’s intestate had long been familiar with the manner in which the cars had been moved at this place, and with that in use when he received his injuries. He therefore knew that the newly loaded car was liable to be “kicked” up against the other cars, and thus to push them forward. If under these circumstances he voluntarily went to work in the space between the cars, giving no notice that he was there, it must be considered that he negligently put himself in a position of danger, and that this negligence directly contributed to his death. If, on the other hand, his request to the conductor to leave the space open is to be taken as a notice of his being in between the cars at the time in question, then the omission to heed this notice, and the “ kicking ” up of the car while he was there, were negligence of fellow servants, for which the defendant is not responsible.. In either case, the court properly ruled that the plaintiff is not entitled to recover.

Exceptions overruled.