Bacon v. New York, N.H. & H.R. Co.
| Decision Date | 28 February 1907 |
| Citation | 80 N.E. 458,194 Mass. 489 |
| Parties | BACON v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Whipple, Sears & Ogden and Ethelbert V. Grabill, for plaintiff.
Choate, Hall & Stewart, for defendant.
This being an action at common law the plaintiff had to make out negligence on the part of the corporation itself.
He contends that he had done so. His argument in support of that contention is that a work train distributing ties and sand for repairing the roadbed is a freight train within Rev. Laws, c. 111, § 200, and that Rev. Laws, c. 111, § 200, was not complied with because there was at the time of the accident no brakeman on or near the rear car, and if there had been he, the plaintiff, would have been seen and not run over. But we are of the opinion that a work train is not a freight train within Rev. Laws, c. 111, § 200, and the rest of the plaintiff's argument need not be considered.
His next argument is that this was not a work train because the engine and crew when they had put the work cars away were to make up an extra freight train by coupling the engine which had made part of the work train onto some freight cars which were waiting to go on to or toward Boston. But this accident happened in putting the work train on the side or storage track. No freight train was to be or was made up until the work train had been put upon the side track.
Exceptions overruled.
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