Mattson v. American Steel & Wire Co.

92 N.E. 703, 206 Mass. 451, 1910 Mass. LEXIS 826

Opinion

Morton, J.

In the former opinion by the Chief Justice (200 Mass. 360) it is said that “ Because the regular engineer was away and the acting engineer was not familiar with the yard, the plaintiff was employed as a lookout.” From the present bill of exceptions it appears that the plaintiff was employed as a brakeman and had been so employed for three and a half years, and that it was his duty to ride on the foot board, as he was doing at the time of the accident, and keep a lookout and see that the track was clear. We do not think that the difference is so material as to compel a different conclusion in regard to the plaintiff’s due care. In either case he was bound to keep a lookout and see that the track was clear. The plaintiff testified at this trial,

* as he did in substance before, that he was standing on the foot board looking down the track in the direction in which they were going, and that it was dark and he did not see any obstruction. He also testified that he had been over the switch where the accident occurred many times during the evening, the last time four or five minutes before the accident, and that there was no obstruction then. He further testified that it was customary for Locks to tell him when any of the bucket cars were moved by hand, but that no such notice was given to him in regard to the bucket car which caused the accident, and which was so moved. In respect to cars moved by the engine on which he was working he naturally would' be expected to keep run of them himself^ The engineer testified that the plaintiff stood turned around looking at him and talking to him as the engine was backing down. But this was denied by the plaintiff, and we think, as was said before by the Chief Justice, that the question of the plaintiff’s due care was for the jury.

One Dobie testified for the defendant and his testimony, which was new, tended to show that Locks was not a superintendent. It is plain that Dobie himself was a superintendent. The works ran day and night, but Dobie worked only during the day time. The plaintiff worked nights, and there was testimony tending to show that he did Dobie’s work at night. There was also testimony tending to show that he had charge of the stockers’ gang and that it was his business to get from the stockchaser, as he was called, directions as to the kind and amount of stock that was required for the different furnaces, and then to see that it was loaded into bucket cars by the stockers and taken by the engine to the furnaces. The plaintiff and the engineer were subject to his directions, or it could be found that they were, and there was also testimony tending to show that a gang called the shear gang received orders from him. He worked more or less with his hands, and if Dobie’s testimony was to be believed that was what he principally did. But it was for the jury to say what weight should be given to Dobie’s testimony and to decide upon the whole evidence whether Locks’s principal duty was or was not that of superintendence. In important, if not decisive, respects the case is substantially the same as it was before, and it cannot be said now, as the Chief Justice said in substance that it could not be said then, that there was no evidence warranting the jury in finding that Locks’s principal duty was that of superintendence, and that the accident was due to negligence on his part.

¡Exceptions overruled.

Before Sanderson, J.