Douglas v. Boston & Maine Railroad
Douglas v. Boston & Maine Railroad
Opinion of the Court
This action of tort is brought against the Boston and Maine Railroad and the American Express Company to recover for personal injuries alleged to have been received by the plaintiff by reason of a defective plank in the platform of the railroad company, and the improper loading of a truck of the express company.
The accident happened at the North Station in Boston in the vicinity of tracks 21, 22 and 23, on the night of July 17, 1916, while the plaintiff was in the employ of the express company. He was the only witness who testified at the trial respecting the" question of liability. He testified that between tracks 21 and 22 there was a cement walk fifteen or sixteen feet wide for passengers to cross on; that between tracks 22 and 23 there was a plank floor and planking between the rails of the tracks with a space between it and the rails; that the planking between the rails of track 22 extended to within an inch or an inch and a half of each rail; that
The plaintiff is presumed to have been in the exercise of due care, and contributory negligence on his part was a defence to be proved by the defendants. St. 1914, c. 553, now G. L. c. 231, § 85. The question then is, whether there was any evidence of negligence of either defendant.
We are unable to find any evidence to support the allegation in the declaration that the railroad company allowed the platforms or floorings to be in “an unsafe, dangerous, decayed, worn and broken condition.” There is no evidence that the platform or floor between the tracks was not properly constructed and free from any defects. The only spaces or openings in the platform were on the tracks next to the rail and were from one to one and a half inches wide, for the flanges of the wheels of locomotives and cars to run in; and in some places this space was wider where electric trucks had run in it. The plaintiff testified that he realized there was danger in pulling a truck across the rails, and that if he did not watch carefully the wheels would catch on the rail or in the space between the rail and the platform; that he did not know
The allegations of negligence of the express company are that the platforms and floorings were in an unsafe and dangerous condition and that the express company in using them was bound to see that its trucks, upon which it placed its goods, and which were required to be run over the platforms, were properly loaded; that the truck in question was negligently loaded by the express company, and that when it came in contact with the defective platform it caused the truck and handle thereof to strike the plaintiff. As already stated there was no evidence of defect in the platform, nor is there any evidence to warrant a finding that the truck was improperly loaded. The plaintiff testified that about one half of the load had been placed in the car before he attempted to turn the truck around, the remainder being on the forward end of the truck; that before it was partially unloaded “it rode all right, and he saw nothing up to that time to criticize in the packing of it, and as far as he saw, [it] was packed right, and . . . the load seemed to ride all right.” And further that after it had been partially unloaded and before he started to pull it across the track, he was satisfied that the remainder of the load was all right, and so far as he could see it was packed all right. While he testified that he did not know what it was that the truck caught against at the time it began to tip over, he was also allowed to answer a hypothetical question put by his counsel, against the objection and exception of the defendants, that when he saw it tip over he formed the opinion that it was caused by its having been improperly loaded. We are of opinion that this question was inadmissible. It did not call for expert opinion, but was a matter within the knowledge of the jury as practical men, of experience in the ordinary operations of every day life. “In such a case the simplicity of common sense affords a safer guide than the niceties of technical knowledge.” Whalen v. Rosnosky, 195 Mass. 545, 547 Lynch v. C. J. Larivee Lumber Co. 223 Mass. 335, 340.
No exceptions to the admission or exclusion of evidence have been argued. Accordingly they are treated as waived. In view of the conclusion reached, it is unnecessary to determine whether the release executed by the plaintiff to the express company discharged the railroad from liability; or whether the plaintiff could recover upon a single count of his declaration against either one or both of the defendants, on the ground that his injuries were caused by negligence of the defendants by their several' acts operating concurrently within the principle of Feneff v. Boston & Maine Railroad, 196 Mass. 575. The presiding judge rightly directed the jury to return a verdict in favor of each defendant. In accordance with the report the entry must be judgment for the defendants.
So ordered.
Reference
- Full Case Name
- Thomas Douglas v. Boston and Maine Railroad & another
- Status
- Published