Babcock v. Old Colony Railroad

Khowltoít, J. The plaintiff, at the time of the accident, was engaged in the performance of his duty. He had a right to expect that the defendant’s track would be free from such obstructions as that which caused his injury. He testified at the trial, that he did not know the sleepers were there, and did not remember having ever seen them until he was hurt. If he had never noticed them, or if he had seen them and at the time of the accident failed to remember that they were there, we think it was a question for the jury whether he was in the exercise of due care. The defendant contends that there was no evidence of negligence on the part of the defendant. A pile of railroad sleepers had been left within seventeen or eighteen inches of the rails, and the yard-master testified that they had been allowed to remain there five weeks. Other witnesses said they had been there only two or three days. It is the duty of a railroad corporation to use reasonable care and diligence to keep its tracks in a safe condition for its employees to work upon. So far as the work of keeping its tracks in repair is left to its servants, it is its duty to exercise reasonable supervision to see that the work intrusted to them is properly done. How far into details this supervision must go before the domain which belongs exclusively to the master is passed and the domain which may be left to servants is entered, depends upon what it is reasonable to require of a master who is charged with the duty of providing safe works, machinery, tools, and appliances for his employees. In some cases this may be a difficult question to decide. But undoubtedly a jury may find that a railroad corporation should so far supervise the work of its servants in repairing its tracks, as to see that a pile of sleepers three or four feet wide is not left for a long time within eighteen inches of the rails in the freight-yard of an important station. The condition of the road under the circumstances shown was evidence of negligence of the defendant corporation. Snow v. Housatonic Railroad, 8 Allen, 441. Holden v. Fitchburg Railroad, 129 Mass. 268. Elmer v. Locke, 135 Mass. 575. Ferren v. Old Colony Railroad, 143 Mass. 197. Griffin v. Boston & Albany Railroad, 148 Mass. 143. [472] The next question in the case is, whether there was evidence to warrant the judge in submitting to the jury the question whether the section master was so far charged with the duty of supervision that the defendant might be liable to one of its servants for his negligence. It is well settled that one who is in some things a mere servant may be made the master’s agent to perform duties which are primarily personal to the master. Moynihan v. Hills Co. 146 Mass. 586, and cases cited. If in the present case the section master was intrusted by the defendant with the performance of the duty, or a part of the duty, of supervision of the tracks which a reasonable regard for the safety of its employees required the corporation to perform, the defendant is liable for his negligence in the performance of it. There was evidence tending to show that different persons had some responsibility in representing the defendant in this respect. A part of the printed instructions to section masters, was in these words: “ They will see that no wood, lumber, ties, or other obstructions are piled within six feet of the track.” It does not very clearly appear what other measures were taken by the defendant promptly to ascertain the existence of defects or obstructions along the track. The evidence on this branch of the case is rather meagre, but we cannot say that there was not enough to warrant the judge in submitting the question to the jury under the instructions which he gave. The only other exceptions relate to the general statement of the law in the instructions to the jury, and the refusal of the judge to instruct them, “ that, if the defendant had used reasonable care in the supervision of the section men and of the use of the yard, the plaintiff could not recover for the neglect of the section men in leaving the ties by the track, or the neglect of the yard-master or the section master or road-master in failing to have them removed, or to report that they were there.” This' instruction could not properly be given, because it required of the corporation merely supervision of the section men and of the use of the yard, and disregarded the duty of the defendant to use reasonable care in looking after the condition of the road in other particulars. It may have been the duty of the yard-master, or the road-master, to exercise this supervision, and if he discovered neglect, to see that the road was not left in a dangerous condi [473] tian on account of the neglect. Under the instructions requested, the yard-master or road-master might have used reasonable care in the supervision of the section men, and been negligent in the performance of a part of the master’s duty which was incidental to supervision, namely, the correction of the errors which supervision disclosed. We are of opinion that the instructions were correct and sufficient. Exceptions overruled.