Mackin v. Boston & Albany Railroad

Even if the car in question is treated as a car of the defendant, furnished by it for its local business between Boston and Brookline, the instructions given to the jury seem to us to hold the defendant to a higher degree of responsibility than the law imposes upon it. The words, “ if, whenever there was a defect, that defect was repaired and removed,” when taken in the connection in which they occur, virtually required the defendant to warrant the perfect condition of the car. This is in excess of the rule, as recently declared in Holden v. Fitchburg Railroad, 129 Mass. 268, 274, 276, 277, where the duty of a master, in respect to those things which he is bound to furnish and keep in good condition, is held to be that of using reasonable care.

In the present case, however, it appears that the car was not owned by the defendant, but came from the West, and was received upon the defendant’s road at its western terminus at *206Greenbush, and was drawn to Boston, and thence to Brookline; and it is contended by the defendant, as the true construction of the bill of exceptions, that the destination of the car when received was Brookline, and that the defendant did not use it in the local business of the corporation, but merely drew it to its original destination, and unloaded it, and was about to draw it back to Boston, to be in readiness for its return to the West. These latter facts are not stated in express terms, but, if true, (although perhaps the mere ownership is not material,) a car so received, while in transit to its destination, and until ready for such inspection as would be suitable and necessary in preparation for its return, would not come within the rule applicable to machinery and appliances furnished by the defendant. According to the course of business, well known to the plaintiff, and notorious, the defendant was in the habit of receiving many such cars daily, and drawing them over its road as a part of its freight trains. Even in the absence of any statute, or special contract, regulating the terms of receiving and drawing such cars, the defendant was bound, as a common carrier, to receive and draw them. Vermont & Massachusetts Railroad v. Fitchburg Railroad, 14 Allen, 462, 469. The obligation of drawing cars over its road would not extend to such as were in an unsafe condition; but, as to cars so received, the duty of the defendant is not that of furnishing proper instrumentalities for service, but of inspection, and this duty is performed by the employment of sufficient, competent and suitable inspectors, who are to act under proper superintendence, rules and instructions; and, however it may be as to other cars, the inspectors must be deemed to be engaged in a common employment with the brakemen as to such cars, while in transit, and until ready to be inspected for a new service. Exceptions sustained.