MaCkenzie v. New York Cent. & H.R.r. Co.

• Citation: 98 N.E. 585,211 Mass. 586
• Parties: MACKENZIE v. NEW YORK CENT. & H. R. R. CO.
• Decision Date: 23 May 1912
• Court: United States State Supreme Judicial Court of Massachusetts

211 Mass. 586

98 N.E. 585

MACKENZIE v. NEW YORK CENT. & H. R. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1912

COUNSEL

Jas J. McCarthy, of Boston, for plaintiff.

Geo. L Mayberry, of Boston, for defendant.

OPINION

DE COURCY, J.

This is an action under the employer's liability act to recover damages for the death of Alexander W. Mackenzie, who was killed while working as fireman on a switching engine at the Beacon Park freightyard of the defendant. From the northerly main track in the yard ran what was known as a lead track and with this latter, by means of switches, were connected various side tracks running in an easterly direction and parallel with the main line. The one nearest to the main line was No. 5, and beyond this were Nos. 7, 9, and 11. The accident occurred at about 10:50 in the evening of February 14, 1906, while a switching crew was making up a freight train on No. 11. Cars were temporarily thrown upon the different side tracks, and then withdrawn therefrom and put on No. 11 in their proper order for the trip. A box car with no brakeman riding thereon had been kicked upon No. 5 and was left so near to the lead track that when the engine continued over the lead to track 7 the engine cab cleared the corner of this car by only from three to six inches. Within two minutes later the deceased was found sitting in the fireman's seat, with his head about four inches outside the cab window and his skull fractured; and blood was seen on the corner of the box car at the height of the cab window. The question presented to us is whether the case should have been submitted to the jury.

1. That the plaintiff, the mother and next of kin of the deceased was dependent upon his wages for support at the time of his death is not controverted by the defendant. Mehan v. Lowell Electric Light Corp., 192 Mass. 53, 78 N.E. 385.

2. Upon the issue of the due care of the deceased there was testimony tending to prove these facts: In the making up of a train the cars were moved in response to signal motions with a lantern, given by the conductor of the switching gang to the middleman, by him passed along to the head end man, and by the last named transmitted to the engineer. When the man giving the signal was in a position where the engineer could not see him, the fireman always took the signal and communicated it to the engineer. Such was the situation when they were going round a curve, and also when the signaling men were on the ground on the fireman's side; because the engineer's view was obstructed by the boiler butt of this engine which extended back through the cab to within eighteen inches of the back board, and was six and a half feet in height above the floor. The fireman's view in the direction the engine was backing was obstructed by the coke rack on top of the tender, which extended seven feet above the floor of the cab and projected three or four inches beyond the sides of the tender. Consequently when watching for signals from the men who might be on his side of the track, it was necessary for Mackenzie to put his head out of the cab window. In doing so he might well rely somewhat on the conductor's observance of the established custom not to leave a car too close to an adjoining intersecting track; and in the darkness of the stormy night his failure to perceive the unusual proximity to his track of...