Flaherty v. New York Central & H.R.r. Co.

• Decision Date: 23 May 1912
• Citation: 98 N.E. 606,211 Mass. 570
• Parties: FLAHERTY v. NEW YORK CENTRAL & H. R. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 570

98 N.E. 606

FLAHERTY v. NEW YORK CENTRAL & H. R. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1912

COUNSEL

Jas J. McCarthy, of Boston, for plaintiff.

G. L Mayberry, of Boston, for defendant.

OPINION

DE COURCY, J.

The plaintiff was walking from the Trinity Place station to the Huntington Avenue yards of the defendant, for the purpose of returning his tools and delivering the usual written statement of his day's work. Along the middle of the railroad location there was a fence; and north of this was the main track for out-bound passenger trains and a spur track which led into the yards. Flaherty was walking alongside this spur track and close to a fence that formed the northerly bound of the location when he was struck from behind by a train of empty cars that was backing out from the South Station to the yards.

The path traveled by the plaintiff was a dangerous one, but we cannot say as matter of law that he was not exercising due care. For years this route had been used commonly and openly by employés of the defendant, 'bosses, foremen, brakemen conductors, car-cleaners, men and women.' And upon the plaintiff's testimony this was the only permissible way to reach the yards, as his foreman had forbidden him to go around by the street and told him to go down the track. Further there was ample evidence that it was customary for the rear brakeman on trains that were being backed down to the yards to blow the whistle on the air hose as a warning signal at this place, and to look out for persons on or near the track. The plaintiff said that he knew of and relied somewhat upon this custom and that no signal was sounded from the train that injured him. According to his testimony he not only listened for the usual whistle or bell of any approaching train, but took the further precaution of looking behind him a number of times during the minute and a half that he was on or near the track. The main track would have been a still more dangerous place for him on account of the frequency of passenger trains. We are of opinion that it was for the jury to determine the weight to be given to this evidence and to pass upon the due care of the plaintiff. Hines v. Stanley G. I. Electric Mfg. Co., 199 Mass 522, 85 N.E. 851; Santore v. N.Y. C. & H. R. R., 203 Mass. 437, 89 N.E. 619; Anthony v. N. Y., N.H. & H. R. R., 208 Mass. 11, 94 N.E. 300.

The evidence would warrant a finding that the injury was due to the negligence of Whalen, the rear brakeman on train 10. He was in charge or control of the train, which he could slow up or stop by applying the air brakes; and for his negligence the defendant is responsible. R. L. c. 106, § 71. He admittedly knew that employés were likely to be on and near the track at the place of the accident, and...