Perry v. Old Colony Railroad , 164 Mass. 296 ( 1895 )

Morton, J.

This is an action for personal injuries, brought under St. 1887, c. 270. There are three counts in the declaration. The first and third counts allege negligence on the part of a person intrusted with and exercising superintendence, who it appeared was one Noyes, the foreman in charge of the roundhouse. The second count alleges negligence on the part of a person who had charge or control of a locomotive engine upon a railroad, who it appeared was one Straw, the engineer of the engine under which the accident happened.

The evidence all comes from the plaintiff and his witnesses. It is nowhere expressly stated what was the nature of the repair which the plaintiff was sent to do upon the engine, but from the fact that the repair principally referred to in the testimony was the grinding in of a check, we infer that that was, in part at least, what the plaintiff had to do; and we assume that Noyes knew it, either in the customary way, by a slip from the engineer, or in some other manner. It is said that when he sent the plaintiff to do the job, he should have given notice to the engineer or fireman that he had been sent. But both the engineer and fireman knew that some one would be sent by the foreman to do the repair; and it hardly would seem necessary for the foreman to notify them that he had done what in the ordinary course of things they had every reason to expect he would do. There was nothing to show that there was anything unusual about the job, or manner or place of doing it. The place was dangerous, but the plaintiff knew that. He also knew that the engine would have to be blown down if a check was ground in, and that that was done over the ash-pit as commonly as anywhere. There was no negligence on the part of the foreman in failing to notify the plaintiff of what he well understood himself. There was nothing to show that it was customary, when men were sent to grind in checks, to notify the engineer or fireman, or anybody else, of the fact, and that they must be careful about blowing down, or that it had ever been done before, or that anything was omitted in this case on which the men habitually relied or had a right to rely. There was testimony that the workmen looked out for themselves, as they needs must in many tilings. Some details a foreman may safely ignore, or leave to the men over whom he has charge. We discover no evidence of negligence on the part of Noyes.

In the next place, even if Straw was negligent in blowing down, which we do not decide, we do not think that he had charge or control of a locomotive upon a railroad track within the meaning of the act. The statute, as it is said in Thyng v. Fitchburg Railroad, 156 Mass. 13, 18, “ seems chiefly to contemplate the danger from a locomotive engine or train as a moving body, and to provide against the negligence of those who, either wholly or in part, control its movements.” This engine was stalled in the roundhouse for repairs, and was not upon a railroad track as the words ordinarily are used. The case would be different, perhaps, if it had been standing on a track, waiting to be coupled to a train, or for some temporary purpose. If the engine had been in the repair shop, no one, we think, would contend that it was upon a railroad track within the fair meaning of the act. The fact that it was in the roundhouse instead, where such repairs were made as could be made comfortably, does not, it seems to us, make any difference. It is also a matter of great doubt whether the engine was in the charge or control of Straw. The testimony tended to show that, when an engine came into the roundhouse, it was generally assigned to a pit, the tender brake set up and the wheels blocked, and then the engineer went off, and the engine was in charge of the train despatcher; or, as the plaintiff put it, “ an engineer, as a matter of custom or practice, has no duties in the roundhouse any more than if he has a little job on his engine to do, he does it,” which is far from saying that in the roundhouse he has charge or control of the engine. The blowing down of the engine was in response to an outside suggestion, and might as well have been done by any one else for aught that appears. But even if the engine was in charge or control of Straw, that is not sufficient. In order to make the defendant liable, it must also have been upon a railroad track, which we do not think it was.

The views expressed above render it unnecessary to consider the question of the plaintiff’s due care.

The result is, that a majority of the court think the exceptions should be sustained, and it is

So ordered.