170 Mass. 168 (1898), Foss v. Old Colony R. Co.

Citation:170 Mass. 168, 49 N.E. 102
Opinion Judge:LATHROP, J.
Party Name:FOSS et al. v. OLD COLONY R. CO.
Attorney:[49 N.E. 102] John D. Long and Wm. M. Stockbridge, for plaintiffs. Benson & Choate, for defendant.
Case Date:January 08, 1898
Court:Supreme Judicial Court of Massachusetts
 
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Page 168

170 Mass. 168 (1898)

49 N.E. 102

FOSS et al.

v.

OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1898

COUNSEL

[49 N.E. 102] John D. Long and Wm.

M. Stockbridge, for plaintiffs.

Benson & Choate, for defendant.

OPINION

Page 169

LATHROP, J.

The bill of exceptions refers to the pleadings, and, while no question of pleading is raised, we may briefly state the declaration, in order to ascertain the grounds upon which the plaintiffs seek to recover. This sets forth that William F. Foss was in the employ of the defendant as the station agent at Roslindale, on October 12, 1892, and as such it was his duty "to place on the track in front of the station, after a train had passed, a red lantern, as a signal to an approaching train that another train was just ahead, and as a warning to the engineer in charge of such approaching train to slacken his speed, and not to approach too near the train which had passed"; that it was his "further duty to remove said lantern about five minutes after the train ahead had passed; that on said October 12, 1892, at about 7 o'clock in the afternoon, said Foss had placed a red lantern on the track in front of the station after a train had passed, and about five minutes thereafter went upon the track to remove said lantern"; and that, while removing it, he was struck by the locomotive engine of an approaching train, and was instantly killed. The declaration contains the usual allegations as to due care on the part of Foss, and negligence on the part of the servant of the defendant in charge of the locomotive engine, and other allegations as to notice and the dependence of the plaintiffs for support upon the earnings of Foss. From the exceptions it appears that the accident happened on the day above stated; that Foss was 38 years old, and had for 15 years been engaged in the railroad business, and was thoroughly familiar with the work, and with everything about a railroad. He had worked on two other roads, had been employed at three other stations of the defendant road, and came to Roslindale two days before the accident. The defendant's road at the Roslindale station runs about east and west, Boston being to the east and Dedham to the west. The station is on the northerly side of the [49 N.E. 103] tracks, and separated from it by a platform about 12 feet wide. There are two tracks; the one...

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