Casey v. Boston & M.R.R.

• Decision Date: 01 January 1919
• Citation: 231 Mass. 529,121 N.E. 403
• Parties: CASEY v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 529

121 N.E. 403

CASEY

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 1, 1919.

Exceptions from Superior Court, Worcester County; Geo. A. Sanderson, Judge.

Action by May Casey, administratrix, against the Boston & Maine Railroad. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Hoy & O'Connell, of Boston, for plaintiff.

Chas. M. Thayer, Frank C. Smith, Jr., Geo. A. Gaskill, and J. Otis Sibley, all of Worcester, for defendant.

BRALEY, J.

The plaintiff's intestate was employed by the defendant as a divisional or signal foreman of its block signal system. It was his duty within the territory assigned to him to supervise the maintenance of signals for the proper operation of which he was personally responsible, and the jury upon conflicting evidence as to his movements could find that while on the ground inspecting a ‘dwarf signal,’ or while on the track he was struck by a passing freight train and instantly killed. The action is brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) to recover damages for his death, and a verdict having been ordered for the defendant the case is here on exceptions to the order, and to the exclusion and admission of evidence. If it be assumed there was evidence that when killed he was engaged in interstate commerce, we are of opinion that on the record there can be no recovery unless there is evidence which would have warranted the jury in finding that his death was caused ‘in whole or in part’ by the negligence of his fellow employés. St. U. S. April 5, 1910, c. 143, 36 Stat. 291; Cruzan v. New York Central & Hudson River Railroad, 227 Mass. 594, 116 N. E. 879;Clapp v. New York, New Haven & Hartford Railroad, 229 Mass. 532, 118 N. E. 658. The negligence which is relied on is the failure of the fireman or of the engineer, or of the head brakeman who rode on the engine, to observe the intestate, and to warn him of his danger, or to reduce the speed, or to stop the train and avoid a collision. It appears from the rules put in evidence relating to firemen that--

‘While engine is moving they will keep a constant lookout when not firing and be on watch if the engineer is obliged to look away from the track in front until he can resume his lookout, they must give instant notice to the engine man of any signals or indications of danger or of obstructions, or if there is any reason to believe that train has struck any person or object on the track. They must observe trains on other tracks to see whether they are carrying signals. They must observe their markers frequently and see that train is complete and in good order. They must arrange the work especially on passenger trains so that fires will not need attention and that no other duties will interfere with their lookout when approaching stations or crossings.’

The rules relating to whistling signals on approaching stations, junctions and railroad crossings at yards, and that a succession of short sounds of the whistle is an alarm for persons or cattle on the track, and that engine men and firemen shall be on the lookout when engine or trains are approaching stations or crossings, and the enginemen are responsible for the speed of their trains also were introduced. It is plain, however, that these rules are designed for the safe management and operation of the train and do not purport to be for the benefit or protection of track and signal men. Sullivan v. Fitchburg Railroad, 161 Mass. 125, 36 N. E. 751;Porter v. New York, New Haven & Hartford Railroad, 210 Mass. 274, 96 N. E. 680;Cruzan v. New York Central & Hudson River Railroad, 227 Mass. 594, 116 N. E. 879. The fireman, engineer, and head brakeman were riding on the engine when the accident happened. The road consisted of four main tracks, and the uncontradicted evidence shows that a short distance from the dwarf signal there was an overhead foot bridge where the curvature is such that enginemen approaching the bridge from either direction are unable to obtain a full view of the tracks on the opposite side. A passenger train going east had just passed leaving in its wake a dense cloud of smoke and steam which...