Ferren v. Old Colony Railroad

The evidence would warrant a jury in finding that the defendant did not provide for its servants a reasonably *199safe place in which to do its work, and that there was danger in moving a car by man-power in the place where this car was, by reason of its proximity to the building, and of the gradually lessening distance between the track and the building.

But the more difficult question is, whether under the circumstances disclosed, and assuming all facts as favorably to the plaintiff as the evidence warrants, we can say, as matter of law, that the plaintiff, by voluntarily entering upon the work, should be held to take the risks. There is no doubt of the general rule, that one who, knowing and appreciating the danger, enters upon a perilous work, even though he does so unwillingly and by order of his superior officer, must bear the risk; but where he is not aware of the danger, and such ignorance is consistent with due precaution, it is otherwise. In the present case, it appears that the plaintiff had a general knowledge of the position of the track and of the building with reference to each other, and that he also knew that cars were sometimes moved along there. But there was evidence tending to show that it was not a part of the business for which he was employed to assist in moving cars in the yard, though he was liable to be called on, when necessity required, to render such assistance; and he testified that when so called on he never refused, though he entered protests. He also testified that he had never before been called on to help in moving a car in the place where the accident occurred, and that he had never before been through that particular space between the car and that corner of the building. Of course he could see that this space was narrow; but it would seem that neither he nor the others who were pushing on the same side of the car with himself understood that it was too narrow to allow them to pass through in safety. This was his mistake. Seeing the situation in a general way, he took hold among the others, and tried to pass through what proved to be too narrow a place for him. He did not rightly estimate the probability or extent of the peril to which he was exposing himself. Though he could see the position of the car and of the building, it might nevertheless be found by a jury that he did not appreciate, and in the exercise of due care was not bound to appreciate, the danger. If, under the circumstances stated, he was called on by his foreman to assist in this *200work, which was outside of the work which he was employed to do, and in a place where he had not before done such work, and if the peril was not obvious to him, and he failed to take notice that the space between the car and the building was too narrow for him to pass through with safety, and if his attention was so given to the work which he was doing that he did not discover the danger till it was too late to save himself, we cannot say, as matter of law, that he must be held to have assumed the risk. The case is close; but the evidence is sufficient to be submitted to the jury upon the question whether he was in the exercise of due care.

The material point of distinction between this ease and many others is, that here it is open to the jury to find that the plaintiff did not know or appreciate the risk of the work upon which he was engaged, and that in the exercise of due care he was not, as matter of law, bound to know or appreciate the same. Haley v. Case, 142 Mass. 316. Russell v. Tillotson, 140 Mass. 201. Taylor v. Carew Manuf. Co. 140 Mass. 150. Leary v. Boston & Albany Railroad, 139 Mass. 580. Lawless v. Connecticut River Railroad, 136 Mass. 1.

For these reasons, in the opinion of a majority of the court, the entry must be,

New trial ordered.