O'Brien v. Boston & Maine Railroad , 209 Mass. 65 ( 1911 )

Morton, J.

This is an action of tort to recover damages for personal injuries received by the plaintiff on June 14, 1906, while in the employ of the defendant as a freight brakeman. At the close of the plaintiff’s evidence the trial judge directed a verdict for the defendant and reported the case to this court. If the judge was wrong in directing a verdict for the defendant it is agreed that judgment may be entered for the plaintiff in the amount stipulated in writing by the parties; otherwise judgment is to be entered upon the verdict.

We think that the ruling was wrong. There was evidence tending to show that there was a defect in the ratchet so that the dog which held the brake as it was wound up was liable to slip, and did slip, thereby causing the accident complained of. One witness called by the plaintiff testified that the ratchet was defective and that it had a tendency to throw the dog out and that it would not hold under pressure. The plaintiff’s description of the manner in which the accident happened also could have been found to be more consistent with the presence of a defective tooth in the ratchet than with any other cause. He testified amongst other things that he was winding up the brake and had his foot against the dog, meaning, it could be fairly inferred, that he was pressing the dog into the ratchet, and had got the brake “ pretty well tightened up,” “ pretty near up to the limit,” and looked round over his shoulder to see where the cars ahead of him were, when “ the dog gave away from me, and as the dog gave away from me the brake went off, it unwound, and down I went, it went off just as quick as that,” illustrating by clapping his hands. The defendant contends that the plaintiff, as he turned to look at the cars that were ahead of him, may have moved his foot and thereby released the dog, or the joggling of the car as it went over the switch may have thrown out the dog, or that in winding up the brake chain one part of the chain wound upon another and then may have slipped off, causing the sudden unwinding; and that it is impossible therefore to tell what the cause of the accident was. All these things were matters proper for the consideration of the jury in passing upon the question whether the accident was due, as contended by the plaintiff, to a defect in the ratchet or to some other cause for which the defendant was not liable; but they did not justify a ruling that there was no defect in the ratchet, and that the accident was not due to that. It was for the jury to say whether in view of the way in. which ratchets such as this were made and of their common use on other railroads, the short tooth complained of, if there was one, constituted a defect for which the defendant was liable. If it was a defect, the fact that such ratchets were in common use would not excuse the defendant if it did not appear that the plaintiff had assumed the risk. So also it was a question for the jury whether, if it were a defect, it ought in the exercise of the care and diligence required of it to have been discovered and remedied by the defendant.

It could not have been ruled as matter of law that the plaintiff was not in the exercise of due care, or that he assumed the risk. It was for the jury to say whether, taking into account the nature of his duties and of the business in which he was engaged, he exercised the degree of care which under the circumstances was required of him. So as to assumption of the risk, it was for the jury to say whether he knew that the ratchet was or might be defective and, if he did, v/hether he assumed the risk of it, and whether a defective ratchet was so common and well known as to constitute one of the obvious risks of the employment, or whether in the performance of his duties he could properly rely upon the assumption that the brake was in a condition to enable him to do his work in safety, and if so to what extent he was justified in acting upon such reliance. Even if in the instant of stepping down upon the platform to wind up the brake he had discovered the defect and had before him the alternative of attempting to wind up the brake, using such care as he was able to use under the circumstances, or of abandoning the car to its fate with the certainty that it would collide with the cars ahead, it is doubtful, to say the least, whether it could have been ruled as matter of law that he would have assumed the risk arising from the defective brake. That question however is not now before us.

We have not found it necessary to consider the questions of evidence. '

In accordance with the report the entry must be: Judgment for the plaintiff in the amount agreed upon in writing by the parties.

So ordered.