Negligence. In an action against a railroad company for causing the death of the plaintiff's intestate, it appeared, that the plaintiff was in the employ of the proprietor of a factory and was engaged in unloading merchandise from a car, standing on a switch track near the factory, into a chute in the factory connected with the car by a steel "brow" four and one half feet long, three feet wide and one quarter of an inch thick, that the intestate was told by the conductor of the switching crew to "look out" because cars were to be moved, that upon such information it was the duty of the intestate to take down the "brow", that shortly afterwards by order of the conductor a car was moved against the one which the intestate was unloading, and the intestate was found caught between the "brow" and the building, suffering injuries from which he died. Held, that, on the evidence in the case, the questions whether sufficient time to remove the "brow" was given to the intestate, whether he was performing that duty with due diligence and skill, and whether the conductor was negligent in starting the car without taking more pains to ascertain the situation of the intestate, were for the jury, and that, in view of the damage to life and limb by a premature moving of the car, the question, whether the negligence of the conductor was gross, was for the jury.
HAMMOND, J.
The evidence was ample to show that while the plaintiff's intestate was engaged in unloading the car he was told by Carruth, the conductor in charge of the crew who were to remove the cars from the side track, to "look out," because the cars were to be moved; that upon such information it was the duty of the intestate to take down the steel "brow" which connected the car with the chute in the building; that shortly afterwards the cars were moved in obedience to orders from Carruth, and after they had been moved a few feet the intestate was found caught between the "brow" and the building and badly injured. So far the case is plain.
As to many of the other parts of the case the evidence is conflicting, and the defendant stoutly contends that there is nothing to show due care of the intestate or gross negligence of the defendant's servants. While it is true that upon the evidence a strong argument can be made in favor of the defendant, still we are of opinion that in view of the weight, size and shape of the "brow," the narrow space between the car and the building, the duty of the intestate upon being warned and the other circumstances of the case, the questions whether sufficient time to remove the "brow" was given to the intestate, whether he proceeded with due diligence and skill to the performance of that duty and was injured while thus acting, and whether Carruth was negligent in starting the car without taking more pains to ascertain the situation of the intestate, were for the jury. And in view of the danger to life and limb by a premature moving of the car under the circumstances, the question whether the negligence of Carruth was gross was also for the jury. For cases somewhat analogous in principle to this case as to some of the questions raised, see Thyng v. Fitchburg Railroad, 156 Mass. 13; Maguire v. Fitchburg Railroad, 146 Mass. 379.
Exceptions overruled.