Fisk v. Fitchburg Railroad , 158 Mass. 238 ( 1893 )

Allen, J.

The defendant’s station at Greenfield had a projecting awning, to protect passengers in getting into or out of the cars from the rain. All the principal stations on the railroad had such awnings, and there had been no change in the one at Greenfield since the plaintiff had worked on the road. His work on the road began in 1886; it was not continuous, but before the accident he had worked on the railroad certainly two years, running all the time on the same division, from Fitch-burg to Williamstown and back. He had been over the road both in the daytime and by night, never very much on the day trains, but had been by there a number of times in the daytime and frequently by night. He was acquainted with the station at Greenfield, and knew there was an awning there. On the night of the accident, which was dark and rainy, he was on a car which came from another railroad; the car was higher than some cars, and had a side ladder. He had ridden on such cars before ; not more than one car in twenty was made with a ladder on the side; on the average, there would be one or two such cars in a freight train. The plaintiff started to get upon the ladder to go down, and in passing the station struck against the awning and was hurt. Such in substance was his testimony.

It was not contended, and could not successfully be contended, in behalf of the plaintiff, that the defendant was guilty of negligence in receiving and hauling such a car as a part of its train. Mackin v. Boston & Albany Railroad, 135 Mass. 201.

At common law, the risk of such an accident, under the circumstances stated, is one which the plaintiff must be held to have assumed. Lovejoy v. Boston & Lowell Railroad, 125 Mass. 79. Wood v. Locke, 147 Mass. 604. Illick v. Flint & Pere Marquette Railroad, 67 Mich. 632.

Nor is a remedy given to him by the employers’ liability act, St. 1887, c. 270, § 1, cl. 1. The condition of the awning had not been changed for the worse during the time of the plaintiff’s employment upon the road ; and it was not the duty of the defendant to alter it. with a view of making it more safe. In order to afford a remedy under that clause of the statute, there must have been a defect in the condition of the awning which arose from or had not been discovered or remedied owing to the negligence of the defendant, or of some person in the defendant’s service intrusted with the duty of seeing that the awning is in proper condition. Where there is no duty, there can be no negligence. The duty of altering the awnings upon its stations was not cast upon the defendant by the enactment of the statute. O'Maley v. South Boston Gas Light Co., ante, 135, and cases there cited.

Exceptions overruled.