Commonwealth v. Hartwell

• Decision Date: 27 February 1880
• Parties: Commonwealth v. Charles H. Hartwell
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 415

Commonwealth v. Charles H. Hartwell

Supreme Court of Massachusetts

February 27, 1880

Norfolk.

Exceptions sustained.

D. S Richardson & S. Hoar, for the defendant.

G Marston, Attorney General, & F. H. Gillett, Assistant Attorney General, for the Commonwealth.

Endicott, J. Morton & Soule, JJ., absent.

OPINION

Endicott, J.

This is an indictment for manslaughter, in which the defendant is charged with negligence and omission of duty, as conductor of a freight train, whereby another train was thrown from the track, and a passenger thereon was killed.

The indictment recites that the defendant was a conductor in the employment of the Old Colony Railroad Company, and was, on October 8, 1878, in charge of a freight train, on the road of the company, which had been run over the outward track from Boston to the Wollaston station in Quincy under his direction; that the company had established for the guidance of its servants proper and sufficient rules and regulations, having relation to the crossing of the inward track, over which trains passed on their way to Boston, by locomotive engines and trains using or running upon the outward track, which rules and regulations were in force at the time and well known to the defendant; and that it became and was his duty not to conduct his locomotive engine from the outward track across the inward track, without first sending forward the proper signal to warn the driver of any train approaching on the inward track that he could not safely pass without stopping.

The indictment then charges as follows: "Yet the said Hartwell, well knowing the premises, and well knowing that a certain train, to wit, a train consisting of a certain other locomotive steam-engine, and divers, to wit, twenty cars attached thereto and drawn thereby, was then and there lawfully travelling and being propelled on and along the said inward track of said railroad, and was then due and about to arrive at that part of said railroad in Quincy aforesaid, near the Wollaston station aforesaid, but disregarding his duty in that behalf did" at the same time and place "wilfully and feloniously, and in a wanton, negligent and improper manner, and contrary to his duty in that behalf, and while the last-mentioned train was then and there due and about to arrive as aforesaid, conduct and drive, and suffer, permit and direct to be conducted and driven," his own locomotive engine across the inward track to a side track, and attached to it certain freight cars, and again crossed the inward track to the outward track, "thereby leaving the switch thrown out of line, so as to disconnect the rails upon the inward track, without first sending forward any signal whatever to warn the driver of said approaching train so due as aforesaid," in accordance with the rules and regulations of the company.

The indictment, after again stating that this train of twenty cars was then due, and that the defendant neglected to send forward the required signal, proceeds to charge, in substance, that, by means of the premises and the felonious neglect and omission of the defendant, the driver of the approaching train, then due at the Wollaston station, was induced to believe that the inward track was unbroken and unobstructed, and that he might safely pass; that he did not stop, but continued on his course, and, by reason of the misplacement of the switch, the train was thrown from the track, and a passenger therein named Patrick Reagan was killed.

It appeared in evidence that the train thus thrown from the track was an extra train, and that the defendant had a written notice from the superintendent of the company that it would run on that day. The notice contained the time-table of the train, and it was due in Boston soon after five o'clock in the afternoon. The defendant's train left Boston on its regular time, at half-past six, more than an hour after the extra train was due in Boston, and reached the Wollaston station soon after seven. The extra train was then, according to the time-table contained in the notice received by the defendant, more than two hours behind time. The defendant, while at the Wollaston station, in obedience to directions from the freight agent, took the freight cars from the side track, crossing the inward track, as set forth in the indictment, without sending forward the required signal to warn any train approaching on that track. No evidence was introduced by the government that the defendant knew that the extra train was then due and about to arrive at the Wollaston station. On the contrary, it appeared by the evidence that he then understood it was in Boston, and stated to his engineer before he left Boston that it had arrived.

Among other instructions requested, the defendant asked the court to rule, that the averment that Hartwell well knew that a certain train "was then and there lawfully travelling and being propelled on and along the said inward track of said railroad, and was then due and about to arrive at that part of said railroad in Quincy aforesaid near the Wollaston station aforesaid," was a material averment, which must be proved by the Commonwealth, and there was no evidence in the case to support that averment.

The court declined to give this ruling; and it is contended by the government that this averment need not be proved as laid but can be rejected as surplusage. But we are of opinion that the ruling should have been given, and that the defendant's exceptions on this...