Lury v. New York, New Haven, & Hartford Railroad

Rugg, J. The plaintiff was an experienced freight conductor working at night for the defendant in its South Framingham yard. He recovered upon a count alleging that he sustained injuries through the negligence of one Willis, a freight conductor of the defendant, working during the day in the same yard. There was evidence from which it might have been found that soon after 7.35 o’clock of a dark April night the plaintiff, in accordance with his duty and custom, made an inspection of the cars standing upon the several tracks at the southerly end of the yard, and ascertained that no cars “ cornered,” that is, were so near the junction with an adjoining track as to be struck by cars in motion upon it, and that on track number 4 there was room for three or four cars. A few minutes later he boarded the locomotive, of which he had charge, and went to the north end of the yard, where Willis was at work with a switching engine and crew. Willis said that he had only two or three more switches to make, after which he was going to the roundhouse, at the south end of the yard, and stop work for the day. Thereupon the plaintiff told him “ We was making up a train ... on No. 6, [545] in the south end of the yard, and to look out for us if he was to use any of those tracks that would come out into 4 lead,” that is, the track from which were switches to reach tracks numbers 4, 6 and -others. To this Willis replied that he would. It was Willis’s duty to see that no cars moved by his orders were left where they would not clear cars moving on adjoining tracks. There was a custom in the yard respecting a warning by one of a train crew, which placed a car so that it cornered on another track, “ of sending a man from one end of the iron to the other to see that these cars wasn’t cornered or shoved out, and to notify anybody that would be liable to use that end of the yard.” The locomotives in charge of the plaintiff and of Willis respectively were the only ones in use in the yard that night. By eight o’clock the latter had stopped work, and his locomotive was put up for the night. The plaintiff with his crew did not go upon track number 4, but at 8.15 P. M., going from the southerly end of the yard to track number 6, by reason of cars cornering from track number 4, he was injured. 1. There was testimony strongly tending to weaken the force of much of this, especially to the point that the custom governed only after notice had been given that another crew was to work in that part of the yard. But we cannot say that taken together it is not susceptible of the construction that the custom was general, prevailing even when there was no such notice. If this was found to be so, then, although it was the plaintiff’s duty “ to know that the cars cleared before ” he “ made a single switching movement ” on the track in question,* it cannot be ruled as matter of law that he was wanting in ordinary prudence to rely on his inspection made barely half an hour before, when he testified that the condition was safe. The question of the due care of the plaintiff was for the jury on the whole evidence. 2. There was also some evidence from which negligence of Willis might be inferred. The conclusion cannot be pronounced unreasonable that either in the time between the inspection by the plaintiff and his conversation with Willis ór after the latter left the north end of the yard, he caused cars upon track num [546] ber 4 to be so placed that they would not clear the adjoining tracks. If this was found, then he might have been pronounced negligent, especially if the general custom referred to existed and no notification was given. Dacey v. Old Colony Railroad, 153 Mass. 112. 3. It is earnestly argued that the request to the effect that “ If the jury find that Mr. Willis placed no more cars upon track 4 after the alleged conversation with Mr. Lury, then there is no evidence of Willis’s negligence ” should have been given. This contention is predicated chiefly upon the assent of the plaintiff to the carefully prepared question put to him on cross-examinatian, whether the custom was not for the warning to be given after a notification of intention to work in that part of the yard if cars were pushed down so they would corner. The witness’s attention was not specifically drawn to the possibly vital difference between the custom thus phrased and the statement given by him on direct examination, which he did not otherwise modify or withdraw. It is an instance of conflicting sentences of testimony, where an instruction is sought on the assumption that one is the whole truth. In such case it is the province of the jury to weigh apparent inconsistencies, and ascertain how far there is real conflict upon all the evidence and not upon any selected portion. Donovan v. Chase-Shawmut Co., ante, 248, and cases cited. The eighth request for an instruction to the effect that the plaintiff was.not in the exercise of due care if no cars were placed upon track number 4 after his conversation with Willis was properly refused for the reason, in addition to those heretofore stated, that the case was submitted to the jury upon several counts as to which the request was not applicable, and it was .not restricted in its scope to the form of action now under discussion. There is no ground for the contention that the jury were misled by the portion of the charge in substance that Willis was responsible for what his subordinates did in the management of the car. The context shows that this related to his duties of supervision as one having charge or control of a train, and in view of the evidence cannot be presumed to have been misunderstood or misapplied. [547] 4. The testimony as to the custom was plainly competent as bearing upon the due care of the plaintiff and perhaps for other purposes. Meadowcroft v. New York, New Haven, & Hartford Railroad, 193 Mass. 249. If the defendant desired to have its effect limited or regarded the answer as irresponsive or unintelligible, appropriate action should have been taken at the time directed to such particulars. The inquiry to the plaintiff as to his appreciation of danger was competent. Whether he knew or as a prudent person ought to have known of the risk incurred bore upon his due care. The questions in redirect examination of the plaintiff as to his duties respecting examination of switches and tracks, to which objection was made, was upon a subject as to which he had been cross-examined fully, and may have related to the witness’s familiarity either with unwritten customs prevailing in the yard or with written rules. In either event it was competent. The employment of loose and perhaps objectionable phraseology as to what he “ was supposed to do ” in a collateral clause of the question, in the absence of specific objection at the time, cannot avail now for setting aside a verdict. Exceptions overruled. Footnotes [*] On the plaintiff’s cross-examination he was asked the question, “ It was yonr business to know that the cars cleared before you made a single switching movement on to that lead?” He answered, “ Yes.”