Negligence, Railroad. A brakeman employed in a freight yard of a railroad corporation, who knows that there is a practice in the yard when shunting a car upon one of two intersecting tracks to place the car at a sufficient distance from the point of intersection to leave room for a man to pass between it and another car moving on the intersecting track, and who knows that this practice is intended, at least in part, to guard the safety of men working upon or near the cars, has a right to assume that cars upon two intersecting tracks have been placed in accordance with this practice and, in going in the night-time to couple a car on one of such tracks to a train, it is not negligence as matter of law for him to proceed to do so without stopping to ascertain whether the cars standing on the two tracks are placed far enough from the intersection of the tracks to afford him sufficient room to pass without being caught between them when one of them is put in motion.
It is evidence of negligence on the part of a railroadcorporation toward a brakeman employed in one of its freight yards, that a car was placed and allowed to stand on one of twointersecting tracks in the freight yard so near the point of intersection that a car moving on the other track would not leave room for a man to pass or stand safely between the two cars.
SHELDON, J.
The deceased met his death in consequence of having been caught between two cars which were standing respectively upon tracks numbered two and three in the defendant's freight yard. These were "repair tracks," upon which were placed only cars that needed repairing. They were intersecting tracks. There was a practice in the yard, when cars were shunted upon these or other intersecting tracks, to place them, not close to the point of intersection, but at a sufficient distance therefrom to leave room for a man to pass between the cars; and it could be found that this was intended, partly at least, for the safety of men working upon or near to the cars, so that one of the difficulties encountered in Porter v. New York, New Haven, Hartford Railroad, 210 Mass. 271, 274, does not stand in the way of these plaintiffs. The deceased in the proper performance of his duty had gone between the tracks and between the two cars for the purpose of coupling one of them to a train that it might be moved out of the way. Accordingly the jury could find that he had a right to act upon the assumption that the cars had been properly placed and that there was room for him to go between them as he needed to do, and that it was not negligent for him to do this without stopping to ascertain whether they were in fact placed far enough away from the intersection of the tracks to afford him sufficient room. Mackenzie v. New York Central Hudson River Railroad, 211 Mass. 586. Parmelee v. New York Central Hudson River Railroad, 215 Mass. 294. There are circumstances in the case at bar which differ from those of the cases cited; but there is nothing which requires as matter of law the application of a different rule.
There was evidence of negligence for which the defendant could be held liable in placing the car on track number 3 too near to track number 2. Parmelee v. New York Central Hudson River Railroad, supra. Dacey v. Old Colony Railroad, 153 Mass. 112. It has not been argued that as to this there was a variance between the declaration and the evidence; and we have not considered whether such a contention could have been sustained.
Exceptions sustained.