Austin v. Boston & Maine Railroad

41 N.E. 288, 164 Mass. 282, 1895 Mass. LEXIS 227

Opinion

Morton, J.

We do not see how this case can be distinguished from Lovejoy v. Boston & Lowell Railroad, 125 Mass. 79, Thain v. Old Colony Railroad, 161 Mass. 353, and Goodes v. Boston & Albany Railroad, 162 Mass. 287. The plaintiff had been employed as a freight brakeman on the Rockport freight for two years or more, and had had occasion to go by this post nearly or quite every day. The post was only one of many structures as near to the track as it was, and the plaintiff must be held to have taken the risk of injury from its proximity, whether he actually knew of the danger or not. The slight sagging of the post towards the track, of which there was evidence, is not shown to have had anything to do with the injury to the plaintiff.

Judgment for the defendant.