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

• Decision Date: 19 October 1893
• Citation: 34 N.E. 1070,159 Mass. 532
• Parties: DAVIS v. NEW YORK, N.H. & H.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 532

34 N.E. 1070

DAVIS v. NEW YORK, N.H. & H.R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 19, 1893

COUNSEL J.B. Carroll, for plaintiff.

G.M Stearns, for defendant.

OPINION

HOLMES, J.

This is an action for personal injuries. The plaintiff was run down by a train while he was repairing a track for the defendant doing work which required him to bend over. He was facing north, and the train came from the south, so that, as he contended, he had to rely on others to warn him of their approach. It was the duty of the foreman of his gang, or "section boss," as he was called, to warn him. The plaintiff went to trial on two counts, under the employer's liability act, (St.1887, c. 270,) the second count alleging that the foreman, being a person intrusted with and exercising superintendence, etc., negligently failed to give warning, and the first, that the engineer of the train negligently failed to give any warning. The case is here on exceptions to the judge's refusal to take the case from the jury, on the usual grounds that there was no evidence of the negligence alleged, or of the plaintiff's due care.

The question whether there was any neglect on the part of the foreman is the point most argued. It depends on the interpretation of the plaintiff's testimony. The foreman and the section hand agreed that the foreman gave the usual warning. The plaintiff testified as follows: "I cannot tell about signals at the time I was struck, because I was knocked senseless. So far as I know, there was no signal of the approaching engine given up to the time I was struck. There was no warning that I know of, in any manner, shape, or form, by anybody, given to me of the approach of this engine. I did not see Glynn, [the foreman,] or I do not know where he was at the time. I did not hear any warning of any kind, and I am not hard of hearing, either."

The last words mean a good deal more than that this witness' memory is a blank. They mean that the witness remembers that his mind was not reached by a warning which he was prepared for, and which, if it was given, was directed towards him, and had the reaching of his mind as its very purpose. Under some circumstances, testimony that a witness did not hear a sound is not sufficient evidence that it was not made, for it may appear that his attention was occupied with other things, and that he had no interest which would pick out and bring forward such a sign from the confused background of semiconsciousness. Hubbard v. Railroad Co., (Mass.) 34 N.E. 459. But where, as here, if the sound was made, the witness, for outward or inward reasons, would have been likely to be aware of it, his testimony that he did not hear it is evidence that it was not given. Menard v. Railroad Co., 150 Mass. 386, 387, 23 N.E. 214; Johanson v. Railroad Co., 153 Mass. 58, 59, 26 N.E. 426; Hendricksen v. Meadows, 154 Mass. 598, 28 N.E. 1054. In the present case the plaintiff meant to be understood by the words "and I am not hard of hearing, either," as politely, but definitely, taking issue with testimony which he anticipated, that the foreman gave the warning. We have nothing to do with the credibility of the story, of course, but in our opinion this evidence was categorically in favor of the plaintiff. Indeed, the plaintiff's case can be sustained on a narrower ground. Even if the foreman's testimony was believed, the jury well might find that his warning was not effectual, and that he had no sufficient reason to believe that it was effectual, and was negligent for that reason.

The judge was not asked to rule that there was no evidence that the section foreman was a person intrusted with and exercising superintendence. The point seems to have received no attention, but the question was put to the jury incidentally. There is no doubt that they were warranted in finding as they did. The foreman himself testified that he just looked on, and saw that the work was done. It seems to have been admitted that he was not at work himself with pick and shovel, and that at least one purpose of his being there was to give warning. Thus the nature of his occupation was shown to be different from what a majority of the court has thought proper to be assumed with regard to a section foreman on a hand car, in the absence of other evidence than that he was engaged with one of the hands in inspecting the track. Shepard v. Railroad Co., 158 Mass. 174, 177, 33 N.E. 508.

No serious complaint is made of the instructions of the court as to negligence on the part of the engineer. The jury were told that the plaintiff could not rely on the failure, if there was one, to give the statutory signals at a whistling post in the plaintiff's rear, as a distinct ground of action, and that the duty to do so was imposed with reference to another class of people. This seems to have been nearly all that was said with regard to the alleged omission of the train to give warning as a ground of liability. The charge probably was understood to mean that there could be no recovery on that ground, apart from the alleged failure of the foreman to do his duty.

If the jury were allowed to find against the defendant on the first count, the judge did not go further than to allow them to consider the evidence that the track was straight for two miles or more, and that no precautions were taken on the train, as some evidence of negligence on part of the defendant. Louisville & N.R. Co. v. Com., 13 Bush 388, 389; Railway Co. v. Slattery, 3 App.Cas. 1155, 1164; Byrne v. Railroad Co., 104 N.Y. 362, 10 N.E. 539; Funston v. Railway Co., 61 Iowa, 452, 459, 16 N.W. 518; June v. Railroad Co., 153 Mass. 79, 82, 83, 26 N.E. 238; Taylor v. Canal Co., 113 Pa.St. 162, 176, 8 Atl.Rep. 43. No question was raised or argued as to the engineer being a person who had charge or control of the train within section 1, cl. 3, of the act. No doubt, for...