Babcock v. Old Colony Railroad

Personal Injuries — Master and Servant — Railroad — Freight Brakeman — Due Care — Negligence — Obstruction by Side of Track. A freight brakeman on a railroad, in getting upon a moving engine in the course of his duty, was injured by striking against some sleepers in its freight-yard, piled five weeks before within seventeen or eighteen inches of the track, which he failed to remember or did not know were there. Held, in an action by the brakeman against the railroad company, that it was a question for the jury whether the plaintiff was in the exercise of due care and the defendant guilty of negligence. The -section master, who shared with others the responsibility of supervising the place, and who had received printed instructions signed by the general manager to see “ that no wood, lumber, ties, or other obstructions are piled within six feet of the track,” was daily on the spot, and knew that the sleepers should have been piled in another place. Held, that whether the company had so intrusted the section master with the performance of any part of its duty of supervising its tracks as to-render itself liable to the brakeman for the section master’s negligence was also a question for the jury. At the trial, the presiding judge refused to instruct the jury, as requested by the defendant, “ that, if the defendant had used reasonable care in° the supervision of the section men and of the use of the yard, the plaintiff could not recover for the neglect of the section men in leaving the ties by the track, or the neglect of the yard-master or the section master or road-master in failing to have them removed, or to report that they were there,” but instructed them, in substance, that the defendant would be liable if its supervising agents, although intelligent and' competent, neglected their duty, if they were doing the master’s duty; and that the real question was whether the defendant had failed through its appropriate servants and agents to exercise such care and supervision as it ought to have exercised to prevent the sleepers from being where they were. Held, that the defendant had no ground of exception.

Tort for personal injuries received by the plaintiff while in the employment of the defendant. At the trial in the Superior Court, before Pitman, J., there was evidence tending to prove the following facts. The plaintiff, a freight brakeman in the freight-yard of the defendant at South Boston, on July 30, 1885, while in the performance of his duty, attempted to get upon the footboard of the tender of a switching engine while it was in motion, and was injured by striking against some railroad ties which had been taken from the track by the section men employed in keeping it in repair, and piled up within seventeen or eighteen inches of the rails. The plaintiff testified that he did not know the ties were there, and did not remember having ever seen them until he was hurt. The yard-master in charge of the yard at the time, called by the plaintiff, testified that the pile of sleepers was three or four feet wide at the bottom, and that he should judge it had been there “ within the vicinity of five weeks ”; that the ties were piled there by the section men, and that it was the duty of the road-master, under whom the section men worked, to order them to be removed; that the road-master was in the yard every few days, but that there was- no stated time for him to be there. The road-master, section men, and switch-tender in the yard, called by the defendant, testified that there were only three ties, and that they had been by the side of the track for only two or three days. It did not appear that there was anything to prevent the ties being seen by a person walking about in that part of the yard. The road of the defendant company was divided into divisions for the care and maintenance of the track, each division being under the charge of a division road-master. The road-master in charge of the division which embraced the South Boston yards was in and about the Boston yards almost daily. Each division of the road was subdivided into sections under the charge of section masters, and the section master of the South Boston yard was one Burke, who worked with his gang of section men in and about the yard daily. A yard-master was in charge of the freight-yard during the day, and also whenever it was used at night, who was instructed to report to the station agent by whom he was appointed, or to the superintendent of that part of the road, any obstruction of the tracks or the yard rendering them unsafe for use. Printed instructions signed by the general manager of the defendant company were given to section masters, which prescribed . their duties, and provided, among other things, that “ they will see that no wood, lumber, ties, or other obstructions are piled within six feet of the track.” These instructions were received by the section master of the section embracing this yard, and both he and the section men understood that it was contrary to the regulations and instructions of the company to leave ties or other obstructions within six feet of the track; and at the yard where the accident occurred there was a place provided where the ties which caused the accident in this case should have been piled when they were taken from the track. The instructions above stated were known also to the yard-master. The freight-yard in which the injury occurred was used for the storage of freight cars, and switching engines were passing over its various tracks many times daily. It was at the principal terminus of the road, and was frequently visited by the station master and transportation agent having charge of the stations, grounds, and yards of the defendant at that terminus. Upon this evidence, which was all the evidence upon the question of the defendant’s liability, the defendant requested the judge to rule that the plaintiff could not recover, and to order a verdict for the defendant; but the judge declined so to rule, and submitted the case to the jury. The defendant then requested the judge to instruct the jury that the section master was a fellow servant of the plaintiff, and that the plaintiff could not recover for his negligence in leaving the ties by the track. The judge declined to give the instructions requested, and instructed the jury as follows: “ In regard to the section master, I am asked to instruct you that the road is, not responsible for his negligence. Instead of doing that, I shall give you a general proposition, and shall say, that if the section master was simply there directing the work of the men, then, if the men were careless, and he was careless in permitting them to leave these sleepers there, and keep them there, the road would not be responsible for it. If you find the section master had, under the rules and regulations for the operation of the road upon the evidence in the case, the duty of supervision, which duty he neglected, of afterwards seeing that these things were removed, why then that might be negligence for which the road would be answerable.” The judge also instructed the jury, that, if this obstruction had existed only two or three days, it would be for them to inquire whether it should or should not have drawn the attention of those whose duty it was to supervise the road, whether they either saw or ought to have seen it, and so failed of proper supervision in not removing it before the accident. The defendant also requested the judge to instruct the jury,, that, if the defendant had used reasonable care in the supervision of the section men and of the use of the yard, the plaintiff could not recover for the neglect of the section men in leaving the ties by the track, or the neglect of the yard-master or the section master or road-master in failing to have them removed, or to report that they were there. The judge declined to give the instructions requested, and instructed the jury that the question for them was whether the sleepers were left where they were by the mere negligence of a section man in throwing them as they were and not removing them, or by negligence in the supervising agents of the road in suffering them to remain where they were the length of time they did so suffer them ; that it was not enough that the servants and agents of the defendant were competent and suitable persons, and had received proper instructions, because the defendant must go further, and show that those servants had done their duty in the matter if they were doing the master’s duty; that it was not sufficient that the servants were intelligent and competent, but if they neglected their duty the defendant was still responsible, unless it should have exercised responsible care and supervision over them in seeing that the place was in proper condition; that in determining this something would depend (it was for the jury to say how much) upon the time which they should find the sleepers to have continued there, — whether the proximity to the other officials of the road, the main freight-house, and the frequency with which the engines were running up and down there, should or should not have drawn.the attention of those whose business it was to supervise the road to this matter, — whether they either saw it, or ought to have seen it, and so failed of proper supervision in not removing it before the accident; and that the real question was whether the defendant had failed through its appropriate servants and agents to exercise such care and supervision as it ought to have exercised to prevent the sleepers from being where they were. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.