Exceptions from Superior Court, Hampden County; Christopher T. Callahan, Judge.
Thomas J. Howard:
‘Q. Whether or not Mr. Higgins [defendant railroad's examiner] said anything to you at that time about what signal you should give when you went back to protect your train, with reference to the movement of your train? A. Yes, sir.
‘Q. What did he say? A. He said that a flagman protecting a train, the train should have a signal from me, which is a lantern, a white light, swung in a vertical position at half arm's length, before they back.
‘Q. I ask you, Mr. Howard, if the swinging of the lantern in a half circle is the 12(c) that is referred to in rule 14 which I read to you? A. Yes, sir.
‘Q. Subdivision H? A. Yes, sir.
‘Q. That is it? A. Yes, sir.
‘Q. And whether or not in making this explanation to you Mr. Higgins referred to rule 14, subdivision H? A. Yes. Yes, sir. He was talking of rule 14 H. There is a practice that the trainmen should get a signal from the flagman before the train is moved back. Rule 99 provides that when a flagman has gone back to protect the train he may be recalled to the train by a signal, and after that signal is given the train cannot be moved backward without a signal from the flagman until I have returned to the train.’
Evidence for Defendant.
Testimony of Harry B. Bussing, civil engineer employed by defendant:
‘It was about 2:22 when we arrived at Congamond that morning coming from the south. It is possible to see the station about three train lengths of 30-car trains away. It was Howard's duty to go back immediately and protect the train as soon as it came to a stop. He should have gone back into the curve, so that he could see around the curve and see the track to the south. There is no written or unwritten rule or practice or custom among railroad men for this company, which makes it the privilege or duty of a rear end flagman to signal his train before it can back up to make a switching movement, or which makes it the duty of the train crew not to make such movement without signals from him. A flagman should go back a sufficient distance so that he can stop a train coming at any speed. When he has gone back a sufficient distance he should place two torpedoes on the track and stay there until recalled by the engineer's giving four blasts on the whistle.’
Edwin F. Griffith:
‘I am at the present time a locomotive fireman. In April, 1917, I was a locomotive engineer with the New York, New Haven & Hartford Railroad. On April 27; 1917, I was the engineer of the freight train on which the plaintiff Howard was the rear end flagman. * * * It was Howard's duty to go back with his proper appliances a sufficient distance to insure protection of the train. He should have done that immediately after the train came to a stop. He had no right to get his appliances together after the train stopped. He should have gone back at least 2,000 feet to the south of the train. He should have gone back onto the curve south of the station, so that he could see a straight track to the south. There is no rule, written or unwritten, or any practice or custom among railroad men, which entitles the rear-end flagman to give his signal to the train to make the movement we made, or which obliges me as an engineer to await such signal from the flagman before making such a movement as we made. The flagman should carry with him a red light, fusees and torpedoes. When he has gone back sufficiently to protect the train he should place two torpedoes on the rail and stay there until recalled by four long blasts of the whistle.’
Mr. John Cosgrove:
‘I was head brakeman on the train which struck Howard April 27, 1917. * * * It was not Howard's privilege to give, or was it the duty of the other member of the crew to receive from him, any signal before that train could be backed up to make this switching movement which it did make, nor is there any practice or custom that would entitle him to give such a signal. I have seen Howard twice since the accident. I never told Mr. Howard that there was no signal given. I talked with Mr. Howard about the accident, but I do not remember all that was said.’
Patrick J. Murphy:
‘I am a locomotive engineer. * * * I know of no rule, written or unwritten, or any practice or custom among railroad men, which would entitle a rear end flagman sent to the rear of his train to protect it under such circumstances as existed here, to give, or which would oblige the other members of the crew to wait until they received from him, a signal to back in order to make such a switching movement as they made.’
Edward W. Root:
‘I am a freight conductor upon the New York, New Haven & Hartford Railroad. * * * There is no rule, written or unwritten, or any practice or custom among railroad men, which entitled a rear-end flagman such as Howard was on this night to give a signal to his engineer to make a backward movement, such as they contemplated making for this switching purpose, and there is no rule or practice which obliges the engineer to wait before making such a backward movement until he gets a signal from the rear end flagman. Howard should have gone that night around the curve.’
Joseph E. Lamie:
‘I am a freight brakeman on the New York, New Haven & Hartford Railroad. * * * There is no rule, written or unwritten, or any practice or custom among railroad men, which entitles the rear-end flagman, sent out to protect the rear of his train, to give a signal to the engineer to make such a movement as was contemplated here, or as was made according to the testimony, and there is no duty on the engineer to wait until he gets a signal from the rear-end flagman before making such a movement as was then made. The engineer gets a signal to back from the conductor or other trainmen. A rear-end flagman gives no signal to his own train. They rely upon the presence of the rear-end flagman a sufficient distance to the rear to protect it against oncoming trains.’
John E. Hoyt:
‘I am a trainmaster on the New York, New Haven & Hartford Railroad. * * * There is no unwritten rule or practice or custom among railroad men whereby a flagman in Howard's position on this occasion would be entitled to give his own train crew a signal to make the backward movement which they made, or which would oblige his train crew to wait for such signal from him before making such movement. On such an occasion as this, according to the rules, the conductor had every right to believe that the flagman was around the curve.’
Guy W. Brackett:
‘I am assistant chief examiner for the New York, New Haven & Hartford Railroad. * * * The rear-end flagman of a train such as we have described here under this circumstance has no right to give his own train crew a signal to make a back-up movement for switching operation. Nor does his own crew have to await such signal from him before making such a movement.’
John W. Cuineau:
‘I am assistant superintendent of the New Haven Railroad and Central New England. I have been employed by the defendants since 1906. I have been train dispatcher, chief train dispatcher, trainmaster and assistant superintendent. I am familiar with the operating rules of the railroad. The flagman on this train should have immediately got off and gone back a sufficient distance to protect his train. He should have had all his paraphernalia and clothes ready, and be ready to get off immediately his train stopped. He had no right to wait until his train stopped before putting on...
