Welch v. Boston & M. R. R to go upon a car, was within the authority of a conductor placed in charge of the train by the railroad company using the track. Railroads Operation Injuries to Licensee-Question for Jury.— The proper interpretation of a conductor's words in telling decedent to remove certain skids, and of his conduct in connection with all the surrounding conditions, was for the jury. Railroads Operation—Injuries to Licensee Liability.‡—If, in response to a conductor's invitation, one goes on a car, and is injured by the negligence of the railroad company's servants, it is liable. Exceptions from Superior Court, Suffolk County; John F. Brown, Judge. Action by Margaret Welch, as next friend of James Flynn, who died since the bringing of the action, against the Boston & Maine Railroad. Action continued by plaintiff as administratrix. Verdict directed for defendant, and plaintiff excepts. Exceptions sustained. E. M. Shanley, for plaintiff. Archibald R. Tisdale, for defendant. BRALEY, J. The plaintiff's intestate, James Flynn, was employed by the Standard Oil Company to weigh oil, or perform other light work as he might be directed. In the performance of his duties as weigher, he worked in a building used as a filling or shipping house, which is referred to in the exceptions as "the platform room or covered platform." In close proximity to this building, the door of which opened onto it, was a railroad track, used to run tank cars to the works where they were loaded, or unloaded, as the oil company might direct. Directly opposite to the covered platform was an open platform, upon which movable skids were placed extending across the track to the doorway of the building, affording when the track was not in use a convenient means of communication. Among other duties, the decedent usually removed and replaced the skids, whenever cars were to be run in or out of the yard. By some omission or oversight, the skids had not been removed, on the day of the accident, before a train came in made up of a shifting engine, with "about seven cars." In coming in, the train broke apart, leaving two cars connected with the engine, while the remaining cars running on a downgrade struck the skids with such force as to break and throw them behind the trucks to the ground. The evidence was conflicting, but the jury could find that the conductor, who stood on the tank car at the extreme rear, and saw the skids, upon ascertaining trespassers or licensees, see second foot-note of Clark v. Colorado & N. W. R. Co. (C. C. A.), 32 R. R. R. 463, 55 Am. & Eng. R. Cas., N. S., 463. Welch v. Boston & M. R. R that they had been struck, and this part of the train stopped by the collision, and setting of the brakes on the car, called to the decedent, who was in the covered platform, "to come and pick up the skids." It appears that the platform of the tank car when the car stopped was not only opposite to the doorway, but extended its entire width, leaving a space of about five inches between the wall and the car. A finding would have, been warranted that the only practicable method of quickly reaching the skids was to pass over the car to the further side of the track and the "outside" platform. It was while attempting to cross, and as he stepped on and took hold of the iron railing, that the engineer in obedience to a signal from the brakeman backed down to recouple the detached cars. The impact forced the tank car suddenly forward, causing the decedent to lose his footing. In falling, he was caught and rolled between the wall and the car, receiving severe injuries. The evidence of the conductor as to his conduct is inconsistent with the evidence of the other witnesses, and there was testimony that when the tank car had been stopped, and while the decedent in his presence was getting on in response to what had been said, the conductor before he had fully boarded the car, or reached a place of safety, signaled the brakeman, who obeyed the order, to couple the cars. It is manifest upon this evidence, and the inferences which could have been properly drawn, that it could not have been ruled as a matter of law, as the defendant contends, that Flynn either was negligent, or assumed the risk. The car was stationary, the conductor in control of the movements of the train was present, and the skids were behind the car on the track from whence he had been asked to remove them. When viewed in the light of common experience, and the ordinary prudence of men, the decedent would be justified in assuming that under these conditions the conductor would not deliberately give an order, the result of which, as he should have known, would cause the car to move suddenly, exposing him to the chance of being injured, without giving some caution, or warning. This question was for the jury. Leavitt v. Leavitt, 158 Mass. 355, 33 N. E. 527; Mears. Boston & Maine R. R., 163 Mass. 150, 39 N. E. 997; Hartford v. N. Y., N. H. & H. R. R., 184 Mass. 365, 68 N. E. 835; Hanley v. Boston Elev. Ry., 201 Mass. 55, 58, 87 N. E. 197, and cases cited. But the principal contentions of the defendant are that Flynn, being either a volunteer, or mere temporary servant of the defendant, assumed any risk arising from the negligence of his fellow servants, or he was a trespasser, or at most a licensee. If the call of the conductor "to come and pick up the skids" was a command, which Flynn recognized as such and obeyed, they became fellow servants. It was, however, a question of fact, under suitable instructions, whether there was a temporary change of employers by the voluntary submission of Flynn to the control of Welch v. Boston & M. R. R the defendant. Bowie v. Coffin Valve Co., 200 Mass. 571, 578, 86 N. E. 914; Cain v. Hugh Nawn Contracting Co:, 202 Mass. 237, 88 N. E. 842; Berry v. New York Central & Hudson River R. R., 202 Mass. 197, 204, 88 N. E. 588. The jury could have said that it was only a request, or an abrupt reminder, that he had neglected his duty in not previously removing the skids. If, however, no change of employment was found to have been effected, yet if Flynn was a trespasser, or a bare licensee, using the car while performing service for the company, the defendant owed to him no duty except to refrain from reckless and willful acts of injury. Heinlein v. Boston & Providence R. R., 147 Mass. 136, 16 N. E. 698, 9 Am. St. Rep. 676. The uncontradicted testimony of the defendant's conductor, and the foreman of the company, showed that the track was owned and kept in repair by the company, although operated by the defendant, to whom the cars and engine belonged. But if as to the employees of the company, who also were rightly there, this exclusive occupation continued until delivery had been completed, an express or implied invitation to use the car was within the authority of the conductor, who had been put in charge of the train. Ramsden v. Boston & Albany R. R., 104 Mass. 117, 121, 6 Am. Rep. 200. The interpretation which should be given to his words and conduct, in connection with all the surrounding conditions, was a question of fact. It is true the conductor testified that he told him not to get on, but from the version given by the plaintiff's witnesses, which the jury were at liberty to accept, they could say he stepped on the car because of the conductor's request. In the operation of the train, if it was of advantage and benefit to the defendant that the obstruction should be speedily removed, an invitation to use the car in the emergency could be inferred, after Flynn had been asked to act. Plummer v. Dill, 156 Mass. 426, 427, 31 N. E. 128, 32 Am. St. Rep. 463. If in response to the invitation, and through no fault of his own while there, he was injured by the negligence of its servants, the defendant is responsible. Wagner v. Boston Elevated Ry., 188 Mass. 437, 439, 74 N. E. 919, and cases cited; Robertson v. Boston & Northern St. Ry., 190 Mass. 108, 76 N. E. 513, 3 L. R. A. (N. S.) 588, 112 Am. St. Rep. 314. We are accordingly of opinion that the case should have been submitted to the jury. Exceptions sustained. STENVOG V. MINNESOTA TRANSFER CO. (Supreme Court of Minnesota, June 18, 1909.) Master and Servant-Injuries to Servant-Assumption of Risk.*Plaintiff, directed to assist in loading heavy rails on to a car, complained that the work had proved too heavy for him. The "master gave no heed to the complaint, but had him go on." As he was lifting one of the heavier rails, he sprained his back. It is held that plaintiff was the best judge of his own lifting capacity, and that the risk was upon him not to overtax himself. Master and Servant-Injuries to Servant-Assumption of Risk.-As to any assurance by the master, the case is controlled by Manore v. Kilgore-Peteler Co., 120 N. W. 340. (Syllabus by the Court.) Appeal from District Court, Hennepin County; David F. Simpson, Judge. Personal injury action by Olaf Stenvog against the Minnesota Transfer Company. The action was dismissed, and from an order denying plaintiff's motion for a new trial, plaintiff appeals. Affirmed. Ludvig Arctander, for appellant. W. H. Norris (F. W. Root, of counsel), for respondent. JAGGARD, J. Plaintiff and appellant was engaged exclusively in trucking goods in defendant's warehouse. Defendant took plaintiff from this work, for which he was especially employed, and directed him to assist another of defendant's employees in loading heavy switch rails into a box car standing in defendant's yards. "After plaintiff had been at work for about 30 minutes, *For the authorities in this series on the question whether railroad employees assume the risks while lifting heavy weights, see Sherman Texas & W. O. R. Co. (Tex.), 18 R. R. R. 637, 41 Am. & Eng. R. Cas., N. S., 637 (inexperienced boy ordered to lift heavy weights); Roberts v. Indianapolis St. Ry. Co. (Ind.), 4 R. R. R. 957, 27 Am. & Eng. R. Cas., N. S., 957 (overexertion by conductor in switching car on turntable); Lee v Chesapeake, etc., R. Co. (Ky.), 6 Am. & Eng. R. Cas., N. S., 783 (carrying ties); Southern Ry. Co. v. Manzy, 20 Am. & Eng. R. Cas., N. S., 647 (loading cars); Bryan v. Southern R. Co. (N. Car.), 21 Am. & Eng. R. Cas., N. S., 542 (loading heavy timbers on cars). For the authorities in this series on the subject of the assumption of risk by employees while doing dangerous work in obedience to orders, see last foot-note of Lyon v. Charleston & W. C. Ry. (S. Car.), 26 R. R. R. 443, 49 Am. & Eng. R. Cas., N. S., 443; second head-note of Chicago, etc., Ry. Co. v. Rathneau (Ill.), 26 R. R. R. 202, 49 Am. & Eng. R. Cas., N. S., 202; foot-note of St. Louis, etc., R. Co. v. Mathis (Ark.), 22 R. R. R. 538, 45 Am. & Eng. R. Cas., N. S., 538. Stenvog v. Minnesota Transfer Co he found that it became too heavy for him, and he complained to the foreman that he could not do the work, because it was too heavy for him. The foreman, however, gave no heed to his complaint, but had him go on, until, as he was lifting one of the heavier rails he sprained his back, in consequence whereof he was obliged then and there to discontinue the work at hand, and quit his job, and submit to medical treatment. These facts appeared in the complaint and in the opening statement of plaintiff's counsel to the jury. Thereupon defendant moved for a dismissal. The court granted the motion. This appeal was taken from the order denying plaintiff's motion for a new trial. The conclusion of the learned trial judge was correct. "I think," the court said, "there is no principle of law that makes the master the guarantor of the sufficiency of a man's muscles, so that if a man is set to do work that is too hard for him to do, and in the attempt to do it he overtires himself or overuses his muscles voluntarily, he can recover." The authority fully sustain this position. In Words v. Railway Co., 99 Ga. 283, 25 S. E. 646, the plaintiff was directed to lift and carry a cross-tie. He complained that the ties were too heavy for him. None the less he was directed to "tote them." In an action brought for consequent injury, it was held that the servant was bound to take notice of the ordinary and familiar laws of nature applicable to the subject to which his employment relates, and if he fails to do this, and in consequence is injured, the injury is attributable to the risks of the employment, and the master is not liable. So in Ferguson v. Mills, 106 Tenn. 236, 61 S. W. 53, plaintiff was ruptured while attempting to lift a truck out of a drainage hole. It was held that he "was the best judge of his own lifting capacity, and the risk is upon him not to overtax it." Defendant has urged the principle "that a servant is not called upon to set up his own unaided judgment against that of his superiors; and he may rely upon their advice, and still more upon their orders, notwithstanding many misgivings of his own." S. & R. on Negligence, vol. 1, § 186. From this point of view the case is controlled by Manore v. Kilgore-Peteler Co., 120 N. W. 340. There plaintiff complained to the master of the insufficient number of fellow servants engaged in unloading a car. There, as here, the master gave no assurance of safety, and said nothing likely to mislead plaintiff or to misrepresent the situation; and the plaintiff knew the danger and in law appreciated the risk. In this view of the case, it is unnecessary to discuss other considerations urged by plaintiff. Affirmed. |