Coughlan v. City of Cambridge , 166 Mass. 268 ( 1896 )

Morton, J.

There was evidence that the plaintiff and others were directed by the “ boss ” at the dump to get on to the cars and go back to the pit to help fill them; that nothing was said as to where they should sit, though the evidence on this point was conflicting; that the floor of the cars was wet; and that the plaintiff sat on the side or edge of a car, with his feet inside, and holding on with both hands. According to this, he was rightfully on the car, and we cannot say that his manner of riding was negligent.

There was evidence which warranted the jury in finding that the accident was due to negligence on the part of the engineer in passing over the switch at an unreasonable speed, and in bringing the train too suddenly to a stop.

Taking into account the nature of the risk, and granting that the plaintiff assumed the risk arising from the rough condition of the track, we do not think that he can be held to have assumed the risk caused by driving the train at an unreasonable speed over the switch, and then bringing it to a sudden stop. He would have no reason to anticipate in the ordinary conduct of the business such a mode of managing the train.

At the time of the accident the defendant was engaged, by means of a locomotive, and train ánd hands to manage the same, hired by it from the Fitchburg Railroad, in transporting gravel from one portion to another of certain premises held and owned by it in connection with its waterworks, for the purpose of improving the same. The track was laid by and with the exception of the ties belonged to the railroad, and was to be removed by it when the work was finished. The improvement which the defendant was engaged in making was for its own benefit and on its own premises; and where the relation of master and servant exists between employer and employed, as it did here between the plaintiff and defendant, and others engaged in the work, we see no reason why St. 1887, c. 270, should not apply to a city or town. See Connolly v. Waltham, 156 Mass. 368 ; Hennessy v. Boston, 161 Mass. 502 ; Driscoll v. Fall River, 163 Mass. 105; McCann v. Waltham, 163 Mass. 344. The track was a short and temporary affair, and the use of it and of the locomotive and cars was to continue only for a short time; but we think that it was a railroad within the meaning of the act.

We think that the notice was sufficient. The time, place, and manner of the accident are clearly stated. One statement of the cause was “ the negligent management of the said train or the said switch by some one then and there in the service of said city, and who was intrusted with and exercising superintendence over the work in which I was then engaged, or who had charge or control of the switch, locomotive engine, or train then and there operated as aforesaid.” There was also a statement that the train, temporary track, and switch were defective and unfit for use, and that the injury to the plaintiff was caused thereby. We do not think that the notice is defective because it alleges different causes, each of which is adequately stated. See Beauregard v. Webb Granite § Construction Co. 160 Mass. 201; Lynch v. Allyn, 160 Mass. 248; Brick v. Bosworth, 162 Mass. 334, The defendant was not harmed by the omission to refer to the notice in the charge. The court had in effect ruled that the notice was sufficient, and the defendant had excepted to the ruling. The instructions requested did not call for further reference to the notice.

The defendant contends further, that the trainmen were not the servants of the defendant. By the contract between the city and the railroad company the latter agreed “ to furnish for the use of the city a locomotive and twenty dump cars, together with conductor, engineer, fireman, and one brakeman to manage the same,” and to keep the locomotive and cars in repair, and furnish fuel' and supplies necessary for the same. The train was to be used to transport gravel and other material for filling around the northwesterly side of Fresh Pond in Cambridge. The company also agreed to lay about one mile of track to be used in said filling, to furnish rails, ties, and other materials for the same, and to take up and remove the track when the filling should be completed. The city agreed to pay $400 a mile for the use of the track, thirty-five cents apiece for the ties, and thirty-seven dollars per day, Sundays excepted, during the continuance of the work. It also agreed to assume all risk of injury to any of the trainmen. It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become as to that service the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired. Johnson v. Boston, 118 Mass. 114. Clapp v. Kemp, 122 Mass. 481. Ward v. New England Fibre Co. 154 Mass. 419. Hasty v. Sears, 157 Mass. 123. Rourke v. White Moss Colliery Co. 2 C. P. D. 205. In this case Hildreth, the conductor, testified on direct examination that “ he went there and came away as the city ordered him ; he was sent there to fill a contract with the city, and to do whatever they wanted me to do; these instructions he got from the Fitchburg Railroad.” On cross-examination he testified that “ as conductor he had charge of the train in a general way, that is, he furnished the train and saw that it was there ready for their use when they wanted it; it was my duty to have the train there to perform the services; he took his instructions as to coming and going from the pit to the dump from Conlan, and at the dump would take them from Bill [Leland], or if he saw the cars were dumped he would go on with the cars; ... as far as instructions were given to him to deal with the train for the performance of the work he had to do, he received his instructions from Conlan at the pit, and from Leland at the dump; ... as far as the running of the train was concerned, the train and the trainmen were entirely under his control.”

There was testimony tending to show that one Nevons, who was in the employ of the city as superintendent of the waterworks, was the general superintendent of the work, and that Conlan and Leland were under him. There was no evidence that the railroad company gave any directions in regard to the work, or exercised any control over the running of the train, unless Hildreth’s charge constituted such control. We think that the ruling of the presiding justice that the conductor, engineer, fireman, and brakeman were the servants of the city was right. The fact that the running of the train was entirely under the control of the conductor does not show that he and the others were not servants of the city. A locomotive and cars without men to run them would have been useless. Instead of hiring trainmen outside, the. city hired them of the railroad with the train. No doubt it was expected by the company and the city that the men hired of the company would continue to run the train till the work was finished. But there was nothing in the contract which prevented the city from discharging the men, and hiring others in their places, if it saw fit to incur the additional expense which would be thus caused.

On the whole case, we discover no error in the rulings or refusals to rule. • Exceptions overruled.