Rooney v. Boston & Maine Railroad

Morton, J. These two actions, which grew out of one and the same injury, were tried together. In each case the judge, subject to the plaintiff’s exceptions, directed a verdict for the defendant, the parties agreeing that if the ruling was right judgment should be entered on the verdict, but, if wrong, that judgment should be entered for the plaintiff against one or both defendants in the sum of $500. We think that the ruling directing a verdict for the defendant Lombard was right, but that directing a verdict for the railroad company was wrong. There was no evidence tending to show that Lombard had anything to do with the piling of the bales, one of which fell and injured the plaintiff. The bales were in a freight shed belonging to the railroad company, and it could have been found that they were piled in the shed by and under the direction of its servants and agents, as they were unloaded from the cars on their arrival. The shed did not constitute a part of the defendant Lombard’s ways, works and machinery. He had nothing to do with it except to go there or send some one there to get the hay upon receiving from the railroad company notice of its arrival. Neither he nor his foreman owed to the plaintiff any duty to inspect the place where the hay was stored. Dunn v. Boston & Northern Street Railway, 189 Mass. 62. They had a [108] right to assume that the place was a safe place and that the hay had been stored in a proper manner. It would be imposing too great a burden on the master to require that where the servant was sent to another place on his master’s business the master should go with him or send some one with him to inspect the premises to see if they were safe. See Eisner v. Horton, 200 Mass. 507. If any duty of inspection rested upon any one it would seem to have been upon the plaintiff himself. And whether in the exercise of due care he should have observed the manner in which the hay was piled was plainly a question for the jury, as was also the question whether the way in which he took out the bales was a proper one, and if it was not, whether it contributed to the accident. There was evidence tending to show that the manner in which the bales were piled was improper and dangerous, and rendered them more liable to fall, and that that was the proximate cause of the plaintiff’s injury. The result is that we think that judgment for $500 for the plaintiff should be entered against the railroad company, and that judgment should be entered on the verdict for the defendant Lombard. So ordered.