Daily Kennebec journal., 1916-09-29
RESCR|PT IN A ~
PISCATAQU|S CASE


has received from the law court re-
script drawn by Associate Justice
George F. Haley of Saco in the Pis-
cataquis county case of George A.
Swasey VS.. Maine Central Railroad
Co.. in which the defendants motion is
sustained and a new trial granted.
This is an action on the case brought
by the plaintiff against the Maine Cen
trail Railroad Co. to recover damages
for injuries received while, in the en-
ploy of the defendant company as a
brakeman.
The plaintiff claims that the defend
ant negligently permitted and allowed
a certain guard-rail in its yard. at
Oakland Junction and station. to be
unlocked, unadjusted, untitled and out
of repair, and that, by reason of that
negligence, while in the discharge of
his duty as brakeman in coupling
and uncoupling cars in the yard, with
all due care on his part, he caught his
foot in said guard-rail and was held
there while the train ran over him,
causing the loss of his leg and inflict-
ing other serious injuries. The jury
returned a verdict for the plaintiff. and
assessed damages at $S375. and the
case is before this court upon gen.
eral motion to set aside the verdict,
and also upon exceptions.
The plaintiff was 80 years old at the
time of the accident. unmarried. and,
prior to the accident. had worked at
railroad work for seven years, as fire.
man, car repairer, car inspector and
brakeman, and at the time of the in
jury, Jan. 2, 1912. he was working as
a brakeman for the defendant.
In the railroad yard at Oakland
Junction. where the accident happen
ed. are a number of tracks with turn
outs, sidetracks and switches. and
there are about Is or 20 guard-rails in
the yard. The guard-rails are con-
structed of bent rails placed on the
inside of the main rail to keep the car
wheels from leaving the track when
switching from one track to another.
The statute of the State obliges all
railroads to keep these guard rails
blocked so that the feet of the employees
cannot be caught therein. 1t is the
claim ofF the defendant that at the
time of the accident the guard-rails
were all properly blocked and in a safe
condition.
The plaintiff was an experienced
railroad man. He knew of the danger
Of going between moving cars. He
knew that the cars were equipped with
automatic couplers: that the couplers
were in working order, and that he
could couple and uncouple the cars by
the use of the automatic coupler with
out going between them. There was no
necessity or stress of circumstances
that compelled him, or made 1t his
duty to go between the cars. He knew
that If he used the coupler in the man
ner that it was intended to be used
he could couple and uncouple the cars
in safety, and instead of employing the
safe method of doing the work. he saw
fit to step into dangerous position
between moving cars and by the use
of his hand to compel the coupler to
work in a manner different from that
in which it was intended to work.
The court holds: when the master
has provided safe method for the
servant to perform the work assigned
to him, and the servant knows it and
instead of using the safe method pro-
vided uses an unsafe method, without
directions to do so from his employees.
he does so at his own risk and is guilty
of contributory negligence if injured
while performing the labor. There are
many Federal cases which hold that
the conduct of the plaintiff in this case
was negligence, and If it contributed
to his injury that he cannot recover.
LAS the record clearly shows that the
plaintiff was guilty of negligence by
stepping between the moving cars to
couple and uncouple them, and that
his negligence contributed to the in
jury received by him. by the we'll set
tied rules of the common law his con-
tributory negligence is a bar to this
action, and it is unnecessary to consid-
ers the exceptions.
Motion sustained. New trial grant