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

• Decision Date: 23 March 1910
• Citation: Devine v. New York, N.H. & H.R. Co., 205 Mass. 416, 91 N.E. 522 (Mass. 1910)
• Parties: DEVINE v. NEW YORK, N.H. & H. R. CO.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 416

91 N.E. 522

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

Supreme Judicial Court of Massachusetts, Suffolk.

March 23, 1910

COUNSEL

L. K. Clark, for plaintiff.

Choate Hall & Stewart, for defendant.

OPINION

RUGG J.

This is an action under Rev. Laws. c. 111, § 267, to recover for, the death of John Devine, who was an employé of the city of Boston and who lost his life under these circumstances: For about three months he had been at work with others under the charge of an assistant superintendent of the Boston Waterworks in lawfully laying a water pipe across the location of tracts operated by the defendant, at a place not far from the South Terminal Station and near the yard for passenger coaches and the coaling station for locomotives, where there were many tracks, and trains and locomotives were constantly passing and repassing, both backing and going foward.There was a bridge over the tracks and a curve near by, so that the trains coming from the South Station were visible for about 200 feet from where the accident occurred; and there was evidence tending to show that when a locomotive was coming from that direction, tender forward, it was impossible from the cab to see the track where the plaintiff was.It was customary, when the gang of men to which the plaintiff's intestate belonged was at work on the tracks, for one of his fellow employés to be stationed nearer the station, where he could see down the curve, to give warning of approaching trains; but at the time of the accident no such man was at this post for the reason that all the men, with the exception of the plaintiff's intestate, had left the tracks for other work.The plaintiff's intestate remained and was bent over to pick up some blocking, when he was struck on his temple by the tender of the locomotive, which was backing and drawing a train of cars on one of the main outbound tracks.

In order to recover the plaintiff must show that the death of her intestate was due either to the negligence of the defendant or to the unfitness of its employés or their gross negligence.There was no evidence of the negligence of the defendant or of the unfitness of its employés.But it is urged that a finding of gross negligence, on the part of those in charge of the locomotive by which the plaintiff was struck, could be supported on the ground that there was some evidence to the effect that it had been a custom for trains coming from the South Station to ring the bell, and no one heard the bell of this engine ring; and that the defendant knew the work of the city of Boston was going on and that the train which caused the injury did not stop.The plaintiff's witnesses all testified that it was a very noisy place by reason of the constant running of...