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

Citation212 Mass. 96,98 N.E. 688
CourtUnited States State Supreme Judicial Court of Massachusetts
Decision Date25 May 1912
PartiesJACOBS v. NEW YORK, N. H. & H. R. CO.

212 Mass. 96
98 N.E. 688

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

Supreme Judicial Court of Massachusetts, Plymouth.

May 25, 1912.


Report from Superior Court, Plymouth County.

Action by Emeline A. Jacobs, administratrix of the estate of Stephen Jacobs, Jr., against the New York, New Haven & Hartford Railroad Company. There was a directed verdict for defendant. On report from the Superior Court. Judgment for defendant.


Chas. W. Bartlett, Jos. W. Bartlett, Fredk. E. Jennings, and Arthur [212 Mass. 97]T. Smith, all of Boston, for plaintiff.

Frank W. Knowlton and Roger B. Hull, both of Boston, for defendant.

[98 N.E. 689]


BRALEY, J.

The injuries to the plaintiff's intestate which resulted in his death after a period of conscious suffering, were caused by the explosion of a railroad signal torpedo, the property of the defendant. It may be assumed, that the jury would have been warranted in finding upon the evidence the following facts. In the management of its business as a carrier of passengers, trains were provided provided with torpedoes, which whenever necessary were to be used by the flagman on the trian ahead to warn trains approaching[212 Mass. 98]from the rear, that a preceding train not very far distant was passing over the same track. The warning consisted in the noise of the explosion, as the oncoming train struck the torpedo, which the flagman affixed to the rail by straps forming a part of the apparatus. To be effective, not only the torpedo must be exploded by contact with the train, but the detonation must be sufficiently great to attract the attention of trainmen. The jury properly could infer from these circumstances, and from the testimony of the plaintiff's expert as to the character of the composition with which it was charged, as well as from the rule promulgated by the company, which was introduced in evidence, that the defendant knew, or by the use of due diligence should have known, that the torpedo contained a highly explosive compound. If exploded without proper precautions, or under extraneous conditions, pieces of the shell or case might fly with such force in various directions as to endanger the safety of persons in the vicinity.

[1] The use of a dangerous agency of this nature, which must be classed with gunpowder, and explosive like nitro-glycerine, and dynamite in its various forms, while lawful, imposed upon the defendant the duty of taking every proper precaution to prevent personal injury to those lawfully upon the company's premises...

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