Vining v. New York & New England Railroad

Allen, J. The present case is to be distinguished from those chiefly relied on by the plaintiff. In Ferren v. Old Colony Railroad, 143 Mass. 197, the plaintiff was taken from his regular work, and was asked to help do something which was outside of the work which he was employed to do, and in an unusual place, and it was accordingly held that the danger to which he was exposed was something which he was not bound to anticipate, or to look out for. In Scanlon v. Boston & Albany Railroad, 147 Mass. 484, a brake man was hurt by coming in collision with a signal post by the side of the track. It was his first trip. He was unfamiliar with the road. He was not informed or cautioned as to the danger, and had no reason to suppose that there were permanent structures so near the track. On these grounds a distinction in his favor was made from Lovejoy v. Boston § Lowell Railroad, 125 Mass. 79, where the plaintiff was familiar with the road, and was held to have assumed the risk. The present plaintiff was in the course of his regular and [543] usual employment. He knew of the existence of the spur track, and of its purpose and use. He was an experienced brakeman, and had been employed on the same road for a year, and had a general familiarity with it. The time of the accident was in daylight. The two cars in question did not differ in width or otherwise from ordinary box freight cars. The car on the spur track could have been seen, but the plaintiff testified that he did not think of looking. There was nothing unusual in the conditions existing at the time of the accident. Under these circumstances, if there had been no change in the position of either track since the plaintiff’s employment, the defendant was not guilty of any breach of duty towards him. The case falls within the recent decisions of Content v. New York, New Haven, & Hartford Railroad, 165 Mass. 267; Thain v. Old Colony Railroad, 161 Mass. 353; Fisk v. Fitchburg Railroad, 158 Mass. 238; and Lovejoy v. Boston & Lowell Railroad, 125 Mass. 79, already cited. Exceptions sustained.