Clark v. Boston & Albany Railroad Co.

• Decision Date: 11 November 1879
• Citation: 128 Mass. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Philip Clark v. Boston & Albany Railroad Company

128 Mass. 1

Philip Clark v. Boston & Albany Railroad Company

Supreme Court of Massachusetts

November 11, 1879

Argued November 14, 1878 [Syllabus Material]

Suffolk. Tort for personal injuries occasioned to the plaintiff by being struck by a car, run and managed by the defendant over the track of the Eastern Railroad Company, at or near the place where said track crosses Saratoga Street at grade in Boston. Trial in this court, before Morton, J., who allowed a bill of exceptions in substance as follows:

The plaintiff was a flagman, employed and paid by the Eastern Railroad Company, upon an understanding between that company and the defendant that the former should provide such flagman, and his duty was to watch the track and give notice when any cars or locomotives, whether of said company or of the defendant, were about to cross the street. There was a small building called a flag-house, situated near the side of Saratoga Street, south of the same, and east of the railroad with a door fronting on the railroad, and windows on each side. The accident occurred about ten or eleven o'clock in the forenoon of a cold day in December. The train in question consisted of a locomotive and three oil cars, the latter being plain, uncovered platform-cars without sides each having on it a tank about three to four feet high cylinder-shaped, and appearing somewhat like a steam-boiler. The cars approached from the north, from the direction of Revere, and, as the plaintiff walked from Saratoga Street to the flag-house, they came behind him, partly towards his left side, and struck him, causing the injuries complained of.

Patrick Rowe testified as follows: "I was about thirty feet off from where the plaintiff was standing, on the same side with him. The first thing I heard was the engine coming, and I pulled up my horse about thirty feet off. I saw the plaintiff flagging the engine past. I heard the whistle and saw the engine pass. The plaintiff looked down the track, and up afterwards, and rolled up his flag, and walked across the track, kind of slanting, towards the flag-house. I started up my horse about ten or fifteen feet, and then I saw the oil cars, and pulled up again, because I saw the cars coming. The plaintiff was then crossing the track. I did not hear any noise of the train of oil cars until I saw them, and did not see any brakeman. I cannot exactly tell how long it was before the oil cars came along after the engine passed,--a second or so. I think it might be between a minute or two. I saw the cars strike the plaintiff on the right shoulder, and turn him round and knock him down; he had one foot between the tracks and the other over. I think there was difficulty in his seeing the cars, because there was a great deal of smoke flying. I could not see them until the smoke went away. It might be a minute or two after I saw the cars coming before the plaintiff was hit. He was walking across the track kind of sideways. The cars were coming behind him. I don't know as he could have seen them very well if he had turned round."

Richard Welsh testified as follows: "I am employed by the Eastern Railroad Company as flagman at another crossing about eight hundred feet away from the plaintiff at the time he was struck. I saw the locomotive and oil cars go by me. Cannot state whether there was any brakeman on the oil train or not. There is a switch there, and the engine comes down one way and the man throws the switch to let the cars go the other. I was watching for this train to come down there, and knew they were going to make a flying switch. I saw the man at the switch to switch in the oil tanks. I saw the switch thrown and the engine pass, and saw the cars coming on the other track. They passed me. When I saw the engine I did not see the cars behind it. I knew it was going to make a flying switch at the time. I was looking out for my own crossing at the time, without thinking an accident would happen. I knew the cars were coming behind the engine. The switch is about...