Negligence, Employer's liability. Railroad. It is not evidence of negligence on the part of a superintendent of the repair shop of a railroad company, that before leaving certain workmen in charge of a pair of wheels of a locomotive engine attached to an axle which had been taken from an engine for repairs he had failed to provide something with which to block the wheels when the workmen wished to stop them or keep them in a particular position on a track, if it appears that the workmen in the shop were accustomed to use for blocking the wheels what they called "scrap", consisting of pieces of wood or board or anything that came handiest to put under a wheel to block it, and that anything would have done for the purpose at the time in question.
It is not the duty of a railroad company maintaining a repair shop for its locomotive engines, nor of its superintendent in charge of the shop, to warn a workman employed there as a helper to assist the engineer, that a pair of wheels of a locomotive engine attached to an axle, weighing about seven thousand pounds, which have been taken from the engine and are on a fall table in a pit used for the purpose of taking off wheels and replacing them, if put in motion on a track on the fall table cannot be stopped quickly and will have considerable momentum, and that it is unsafe for a workman after such wheels are thus in motion to take a position against a corner of a recess in a wall of the pit where a crank pin attached to the outside of one of the wheels may strike him.
KNOWLTON, C.J.
The question in this case is whether there was any evidence of negligence on the part of the defendant, or of its superintendent.
There was no evidence tending to support the second and third counts of the declaration, in each of which it is averred that the defendant's fall table was in a defective and unsafe condition.
It is contended that there was negligence on the part of Olson, the superintendent, in not providing something to block the locomotive wheels when the workmen wished to stop them or keep them in a particular position; but the testimony was undisputed that the workmen in this shop were accustomed to use what they called "scrap" to block the wheels, that is, pieces of wood, or board, or anything that came handiest, to put upon the track under the wheel to block it. The witness who testified on this point said that anything would have done just at that time. One Bowen had been sent by the machinist to bring something to use as a block, and, if there was any negligence in regard to this, it was the negligence of the machinist and the other men in moving the wheels without waiting for Bowen to return, and not the negligence of the superintendent, who was absent at the time.
The contention most relied on by the plaintiff is that there was negligence in failing to warn him of the danger of getting caught by the crank pin against the corner of one of the holes in the wall at the side of the pit.
It is not contended on the evidence that the construction of the pit was improper, or that any other mode of construction would have been better. It is not contended that, for the safety of an employee who had contracted to work there, the defendant was bound to change the construction of the fall table, or the pit, if another construction would have been safer. The contrary has been decided in many cases.
It is contended that the danger from which the plaintiff suffered was a peculiar one, which, from observation of the place, he would not be expected to discover or anticipate, and which the defendant knew or ought to have known, so that it was the defendant's duty to warn him and instruct him how to avoid it. According to the testimony, the axle and the pair of wheels connected by it weighed about seven thousand pounds. A man of ordinary intelligence could not fail to know that such wheels would start slowly, and that when in motion they could not be stopped quickly. One would know from their size and weight that he could not safely allow them to move up and catch him between them and an immovable wall.
In each wheel there was a counterbalance, occupying a section that included about one eighth of its circumference, which was designed to balance the weight of the crank pin, and of the connecting rod that was attached to it. As the connecting rod had been taken off before the accident, the counterbalancing weight was greater than the weight of the crank pin and its bolts and attachments on the opposite side of the wheel, so that it had a tendency to increase the difficulty of stopping the wheel when its weight was on the part of the circumference that was descending. As the crank pins on the opposite wheels were set at different angles with a perpendicular line, the counterbalances on the two wheels were put on correspondingly different parts of the circumference, so that when one was descending, the other would be going, with the same revolutionary movement, at a point in a line one eighth of the circumference of the wheel away. While their combined effect upon the motion of the wheel was not so great as if both had been at the same point in the circumference, they appreciably affected it in some parts of the revolution. Although this was open to observation on looking at the wheels, whether a helper would be expected quickly to notice it we do not think very important in this case, for in any event he could not fail to know that such wheels, when in motion, would have considerable momentum, and he would be expected to know that it would be unsafe to take a position against a corner of one of the openings in the wall where the crank pin might strike him. Moreover, in moving wheels on this track that is not a position which one would be expected to take, even if there were no danger attending it.
The question is whether the defendant had reason to think that an ordinary person, set to work with several other men in moving locomotive wheels, was in serious danger of putting himself in this position while the wheel was rolling forward in a way that would be likely to bring it against him. Unless the defendant's superintendent would have reason to expect this, it was not his duty to warn the plaintiff in regard to it. We see no evidence that a superintendent should have anticipated a possible accident of this kind so as to make it his duty to give helpers instructions in regard to it. Everything in the situation was open, the place was well lighted, the forces involved were the ordinary forces of nature, operating in an ordinary way upon materials and objects with which, in their essential features, everybody is familiar.
We are of opinion that there was no evidence of negligence of the corporation or of its superintendent in failing to warn the plaintiff of the danger of such an accident as happened to him. See Goldthwait v. Haverhill Groveland Street Railway, 160 Mass. 554; Stuart v. West End Street Railway, 163 Mass. 391; Ciriack v. Merchants' Woolen Co. 146 Mass. 182.
Exceptions overruled.