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

• Decision Date: 26 May 1917
• Citation: 227 Mass. 168,116 N.E. 546
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HERLIHY v. NEW YORK, N. H. & H. R. CO.

227 Mass. 168

116 N.E. 546

HERLIHY

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

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1917.

Exceptions from Superior Court, Suffolk County.

Action by Nora Herlihy, administratrix of the estate of her husband John Herlihy deceased against the New York, New Haven & Hartford Railroad Company. Verdict for defendant and plaintiff brings exceptions. Exceptions overruled.Bernard J. Killion, Chas. Toye and Samuel A. Fuller, all of Boston, for plaintiff.

John L. Hall and Thos. P. Lindsay, both of Boston, for defendant.

CROSBY, J.

This is an action to recover for the conscious suffering and death of the plaintiff's intestate on account of the alleged negligence of the defendant. At the close of the plaintiff's evidence the presiding judge directed the jury to return a verdict for the defendant. The exceptions present the question whether there was any evidence of negligence to be submitted to the jury, and also questions as to the correctness of certain rulings upon the admission and exclusion of evidence. The declaration contains counts under the Massachusetts Employers' Liability Act, St. 1909, c. 514, § 128, and the federal Employers' Liability Act, 35 U. S. St. at Large, c. 149, as amended by U. S. St. 1910, c. 143. No question is raised as to the propriety of such joinder. The issues presented do not require us to decide whether the plaintiff is entitled to recover under the Massachusetts act or the federal act, unless there was some evidence of negligence of the defendant.

The plaintiff's intestate was a switchman employed by the defendant in its railroad yard in Roxbury. A plan of the yard where the accident occurred was introduced in evidence. The evidence showed that the four main tracks of the Providence division of the defendant were located near the place of the accident; that there was what was called the lead track, with which the other tracks in the yard connected, which left the most northerly main track at a point near the overhead bridge at Gainsborough street; that from a point near the last named street other tracks were laid from the lead track to the east, connecting with the turntable; and then there were three other tracks, namely, the runaround track, the coal track, and the trestle track. The last named track was the most northerly and was connected with a coal shed upon a trestle. At a point north of the most northerly track and about two hundred and fifty feet from Gainsborough street was a switchman's shanty. A switch opposite the shanty controlled the coal track and the runaround track. It was the duty of the plaintiff's intestate to attend this switch. To obtain coal for engines it was the practice to run them into the yard from the main track upon the lead track, thence on to the coal track by means of the switch; after getting coal they would return over the runaround track which joined the coal track at a point about opposite the switchman's shanty. In this way engines were able to go to the coal shed and return without obstructing the passage of each other.

The circumstances of the accident as shown by the evidence were as follows: Upon the morning of August 12, 1912, a passenger train drawn by engine 1698 in charge of Engineer Boylan and Fireman Hanley, arrived in Boston from Washington, R. I.; and after its passengers were discharged at the South Terminal Station and its cars were left at the Roxbury yard, the engine passed by the switch at Gainsborough street and then was backed toward the coal shed for the purpose of obtaining coal. The signal at this point was set for the engineer to proceed, and as the engine approached the switch which would permit it to run from the lead track to the coal track, the decedent, Herlihy, threw the switch and motioned for the engineer to come ahead. At that time another engine in charge of one Schilleu, an engine hostler, was coming from the coal shed on the runaround track and stopped soon afterwards. The undisputed evidence shows that after Herlihy had thrown the switch for Boylan's engine to approachand had motioned for him to come ahead, that he ran in front of this engine from the northerly to the southerly...