Mahoney v. New York & New England Railroad

Knowlton, J. The questions raised by this bill of exceptions and argued by the defendant are three: first, whether there was evidence to warrant a finding that Grady, the section foreman, was a person whose sole or principal duty was that of superintendence within, the meaning of the statute ; secondly, whether there was evidence that the plaintiff was in the exercise of due care; and thirdly, whether there was evidence of negligence on the part of the defendant. It appeared that Grady was a section foreman having immediate charge and superintendence of a gang of five men. It was his duty to take receipts, check the freight into the cars, and see that it was loaded into the right cars. These five men were working all the time under his direction in handling the freight. [579] The jury might well find that his principal duty was that of superintendence. Malcolm v. Fuller, 152 Mass. 160, 166. Prendible v. Connecticut River Manuf. Co., ante, 131. The cause of the accident seems to have been that the weight of the bale of burlaps and the weight and force of the men standing on the wagon and lifting depressed the hind end of the wagon, which turned on the axle as a fulcrum and lifted up the forward end so as to let the bale fall to the ground between the wagon and the building. The floor of the wagon extended two and one half or three feet behind the axle, and the tail-board extended about one and a half feet farther. It would seem that the accident was an unusual one, and we are of opinion that, upon all the evidence, it was a question of fact for the jury whether the plaintiff was in the exercise of due care in lifting at the bale as he did. He was acting under the order's of Grady, and he had a right to trust somewhat to him to look out for his safety in determining where and how to work in unloading the bale. It does not appear that the plaintiff was doing anything which would generally be deemed careless by prudent men, and we cannot say, as matter of law, that he was not in the exercise of due care. The question whether there was evidence of negligence on the part of the defendant’s superintendent is one of more difficulty. There is good ground for saying that this was a pure accident, for which nobody was to blame; but we cannot say that as matter of law. The mere happening of an accident, if it is one that the exercise of ordinary care would commonly prevent, is some evidence of negligence. White v. Boston & Albany Railroad, 144 Mass. 404. Grady, the superintendent, had the responsibility of determining how the bales should be loaded. It was proved that there was a gang plank near by which might have been used, and which if used would have prevented this accident. The jury may have found from the evidence that, if the wheels of the wagon had been more securely trigged or scotched, it would not have moved forward from the pressure, and the accident would not have happened. It was the duty of Grady, who ordered the men to unload the bale, to take all reasonable precautions to insure their safety. In this respect his relation to the work differed materially from that of the plaintiff and the [580] other men. The plaintiff had a right to assume that the wheels were properly trigged, and that the method selected by the foreman for unloading was safe and proper. Upon all the circumstances of the case, whether he used due care in setting his men at work as he did, and whether he took proper precautions for their safety, were questions of fact; and there were circumstances to sustain the plaintiff’s contention that he did not. We are of opinion that the case was rightly submitted to the jury. Exceptions overruled.