Dacey v. New York, N.H. & H.R. Co.

• Decision Date: 22 May 1897
• Parties: DACEY et al. v. NEW YORK, N.H. & H.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 479

47 N.E. 418

DACEY et al. v. NEW YORK, N.H. & H.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1897

COUNSEL

Michael J. Sughrue and James J. McCarthy, for plaintiffs.

Benton & Choate, for defendant.

OPINION

BARKER J.

The verdicts were rightly ordered because the evidence would not support a finding that when the deceased was injured he was in the exercise of due care. Such a finding would be only a conjecture. No one saw him at the time of the accident. If we assume that he was hurt by coming in contact with the switch the evidence does not disclose how or why he struck it, or what he was doing at the time. When last seen before the accident, he was walking upon the ground 60 feet or more from the switch, with a lantern in his hand, going away from the switch and towards the rear car of four box freight cars which were approaching the switch and approaching the deceased, and upon which he was expected to ride to another switch, which it would be his duty to turn. The only witness who saw him was upon the top of the rear car, and this witness testified that the deceased came walking up to get a ride on that car; that he did not see the deceased get on but knew he was going to get on, because he came right over to the car; and that when he last saw him he was approaching the car with his lantern in his hand. When the car was opposite the switch the witness heard a "bang," the switch shook, and the light on the top of it went out. When about 10 or 12 feet further along, the forward trucks of the rear car went off the rails; the witness lay down and looked backward, and saw a light in the middle of the track. He then jumped off the car, went back, and found the deceased fatally injured, on the track, with his lighted lantern on his arm, at a point 10 or 12 feet from the switch, and on the opposite side of it from the point where he was last seen before the accident. The additional fact that the board of the switch was found to be split, and its form bent, makes it probable that the deceased, having got upon the car, was carried against the switch, but even this is uncertain. There was no ladder on the side of the car, and there was a stirrup and a grab iron on the right-hand side at the front end. There was a similar stirrup and a grab iron on the left-hand side of the car at the rear end, and there was a ladder on the right-hand side of the front end of the car,...