Negligence. Railroad. One who is employed by a shipper to assist in putting merchandise into a freight car on a spur track of a railroad, and in pushing the freight car to the place of loading is struck and injured by another car started down a grade by a high wind, the grade not being noticeable and not known to him, can be found to be in the exercise of due care.
To leave an empty freight car with the brakes not set at the top of a down grade on a spur track, on which it is the practice for shippers to move cars by hand, can be found to be negligence on the part of a railroad company, for which it is liable to the employee of a shipper who when pushing another car into the place for loading is struck by the car first mentioned started down the grade by a high wind; and in such a case it is no excuse for the railroad company that the car with the brakes not set was held in place on the grade by the car below it, which had its brakes set and which was moved by the employee of the shipper after loosening its brakes, because such a moving of the supporting car ought to have been foreseen.
LORING, J. [After the above statement of the case.]
The defendant seeks to support the ruling on two grounds: first, that there was no evidence of due care on the part of the plaintiff, and second, that the cause of the accident was on the evidence a matter of conjecture and no negligence on the defendant's part was shown.
But we are of opinion that these contentions cannot be maintained.
1. The place in question was not a railroad yard where cars were continually going back and forth. It was a single spur track, leading off the main line, devoted to loading freight cars, at what appears to be a small country station of the defendant's railroad, and at the time of the accident there was neither any employee of the railroad company nor any other person in the neighborhood. Under these circumstances the plaintiff was not as matter of law lacking in due care in walking between the rail while pushing the car in question to the place where it was to be loaded at the invitation of the defendant. There was evidence that the plaintiff did not know that there was a grade in the track. For this reason the case does not come within such cases as Jean v. Boston Maine Railroad, 181 Mass. 197; Judge v. Elkins, 183 Mass. 229; Dyer v. Fitchburg Railroad, 170 Mass. 148; Dolphin v. New York, New Haven, Hartford Railroad, 182 Mass. 509; and also is to be distinguished from Martyn v. New York Boston Despatch Express Co. 176 Mass. 401.
2. We are of opinion that the jury were warranted in inferring that the car which was left without the brake being set and which ran down upon the plaintiff was put in motion down the grade by the high wind which then was blowing. The case comes within such cases as Cox v. Central Vermont Railroad, 170 Mass. 129, and not within such cases as Kendall v. Boston, 118 Mass. 234, and Wadsworth v. Boston Elevated Railway, 182 Mass. 572. We also are of opinion that to leave a car with the brakes not set, at the top of a down grade on a spur track on which it is the practice for shippers to move cars by hand, is an act of negligence. The only doubt we have had is this: The plaintiff testified that the brakes were set on the first car which Porter and his employees moved south on this spur track, that there were no brakes set on the second car brought down by them, and that Porter and his men let off the brakes on the first car when they brought it down. But if it be assumed that the setting of the brakes on the first car next to the grade was a sufficient protection against all the cars behind it running down the grade, the defendant knew that there was a grade at this point and it also knew the practice then existing for the local agent to leave it to shippers to move the cars to the desired place, and knowing this it was negligent to leave this car at the top of the grade with the brakes not set, as against a shipper or the employee of a shipper who, from ignorance of the existence of the grade, might move the first car and thus be exposed to the danger from which the plaintiff suffered.
Exceptions sustained.