Jacobs v. New York, N.H. & H.R. Co.
| Decision Date | 25 May 1912 |
| Citation | 98 N.E. 688,212 Mass. 96 |
| Parties | JACOBS v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas. W. Bartlett, Jos. W. Bartlett, Fredk. E Jennings, and Arthur T. Smith, all of Boston, for plaintiff.
Frank W. Knowlton and Roger B. Hull, both of Boston, for defendant.
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 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.
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 from explosions which might be precipitated through the carelessness of its servants. Derry v. Flitner, 118 Mass. 131; Oulighan v. Butler, 189 Mass. 287, 292, 75 N.E. 726; Dulligan v. Barber Asphalt Paving Co., 201 Mass. 227, 231, 87 N.E. 567.
The inquiry, accordingly, is whether the injury in question reasonably should have been anticipated by the defendant. Obertoni v. Boston & Maine R. R., 186 Mass. 481, 71 N.E. 980, 67 L. R. A. 422. The train which came into the station where the intestate, a boy of fifteen years of age and his young companions were waiting for the departure of friends, carried in the baggage car a torpedo to be used as a signal, which the jury could find was carelessly ejected by the defendant's baggage master, and fell within the railroad location. The evidence having warranted a finding that the intestate was not a trespasser, it would follow that...
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