Foss v. Old Colony R. Co.
| Decision Date | 08 January 1898 |
| Citation | 49 N.E. 102,170 Mass. 168 |
| Parties | FOSS et al. v. OLD COLONY R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John D. Long and Wm.
M. Stockbridge, for plaintiffs.
Benson & Choate, for defendant.
The bill of exceptions refers to the pleadings, and, while no question of pleading is raised, we may briefly state the declaration, in order to ascertain the grounds upon which the plaintiffs seek to recover. This sets forth that William F Foss was in the employ of the defendant as the station agent at Roslindale, on October 12, 1892, and as such it was his duty "to place on the track in front of the station after a train had passed, a red lantern, as a signal to an approaching train that another train was just ahead, and as a warning to the engineer in charge of such approaching train to slacken his speed, and not to approach too near the train which had passed"; that it was his "further duty to remove said lantern about five minutes after the train ahead had passed; that on said October 12, 1892, at about 7 o'clock in the afternoon, said Foss had placed a red lantern on the track in front of the station after a train had passed, and about five minutes thereafter went upon the track to remove said lantern"; and that, while removing it, he was struck by the locomotive engine of an approaching train, and was instantly killed. The declaration contains the usual allegations as to due care on the part of Foss, and negligence on the part of the servant of the defendant in charge of the locomotive engine, and other allegations as to notice and the dependence of the plaintiffs for support upon the earnings of Foss. From the exceptions it appears that the accident happened on the day above stated; that Foss was 38 years old, and had for 15 years been engaged in the railroad business, and was thoroughly familiar with the work, and with everything about a railroad. He had worked on two other roads, had been employed at three other stations of the defendant road, and came to Roslindale two days before the accident. The defendant's road at the Roslindale station runs about east and west, Boston being to the east and Dedham to the west. The station is on the northerly side of the tracks, and separated from it by a platform about 12 feet wide. There are two tracks; the one nearest the platform being at that time used by trains going to Boston and the other by trains going to Dedham and beyond. The tracks passed the station in a long, sweeping curve, the station being on the inner side of the curve. The train by which Foss was struck was an express train, and came from beyond Dedham, and was due to pass Roslindale, without stopping, at 12 minutes after 7 p.m., on its way to Boston. The last train passing in the same direction was due to leave Roslindale at 2 minutes after 7. There were thus 10 minutes between the running time of the two trains. There was also another train, which left Roslindale for Dedham at 22 minutes after 7. Before the accident, a red light was seen in front of one of the doors of the station. One of the witnesses testified that "he could not say whether it was outside or in the center of the rails, but it was not on the platform." Another witness testified that the light was on the track. The evidence as to the way Foss met his death is told by several witnesses. One Horton, who was going along South street, and passed under the gates after they were down for the approaching train to the north side, testified that he heard the whistle of the approaching train, and saw the red light, and stopped to see what was going to become of it; that he heard the train thundering along, and saw a man come to the bay window, look up, and turn quickly, and then heard the door slam; that he then saw him pass out of the door to the light, and stoop, "and then simply saw the red light wave a little, and that was all, until the train passed." One Young testified that he went into the station about 10 minutes past 7, and heard a whistle; that he asked Foss if he should take in the lantern; that Foss at the time was in the ticket office, talking to a lady, who was standing at the window opening into the ladies' room;...
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