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

• Decision Date: 13 October 1921
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MAHONEY v. NEW YORK, N. H. & H. R. CO.

240 Mass. 8

132 N.E. 384

MAHONEY

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

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 13, 1921.

Report from Superior Court, Worcester County; George A. Flynn, Judge.

Action by Anna Mahoney, administratrix, against the New York, New Haven & Hartford Railroad Company. There was a directed verdict for defendant, and case is reported under stipulations of parties. Judgment ordered for plaintiff.

The evidence was in part as follows:

Thomas Germain, called by the plaintiff, testified:

That he was employed by the American Steel & Wire Company at its south works in Quinsigamond; that he worked in rod mill No. 3 at night; that he worked every half hour and rested the other half hour; that on the evening of August 22, 1917, at about 11:10 p. m. he was resting and sitting outside of the rod mill alongside the door on a board near the east rail of track G at the opening where track G enters the rod mill looking toward track A; that it was kind of a dark night; that the electric lights were burning around there; that also light reflected out of the opening of the rod mill; that he saw the intestate walking an ordinary gait in a westerly direction about 6 or 8 feet before the engine struck him; that he saw the engine coming in the same direction that the intestate was walking; that he was sitting right in front of rod mill No. 3 and he saw a man come along and he saw the engine come along and he hollered as much as he could and probably the man did not hear him as the mill was making a lot of noise. He hollered as much as he could and he saw the man when he fell down. He couldn't tell how fast the engine was going, pretty fast. He noticed Mr. Kelley walking, and the engine went twice as fast as the man walked, three or four times faster. They hit him with the engine; he could not see what part of the engine but he thought a piece of board in front. There were no objects between him and the man to obstruct his view.

After the engine knocked the man down, the engine went about 25 or 30 feet before it came back again. It went about 25 or 30 feet beyond the switch before it stopped and then it came back again and stopped by the switch. The brakeman got off at the switch and threw the switch and he came back on the other line.

‘Q. To retrace our steps, as you noticed the engine, whether or not the bell of that engine was being rung at the time you first noticed it? A. No; no bell rung.

‘Q. Whether or not any whistle was blown at that time before the accident? A. No, sir.

‘Q. Do you know what kind of a light was on this engine that night? A. A dark light, not very shiny.

‘Q. No shining light? A. No.

‘Q. Whether or not that light of the engine threw any rays, you say it was not a searchlight? A. No; no searchlight.

‘Q. In regard to any other noise from the engine, whether or not it was sending forth or blowing in any way and how was it coming along? A. It came pretty quietly.

‘Q. No puffing? A. No.'

Upon cross-examination, the witness testified he had not seen the plan, but had seen the track. He had never seen the plan before. He did see the plan in Mr. Reid's office.

‘Q. You had seen it in Mr. Reid's office, just that same plan? A. Yes.

‘Q. Hadn't you? A. Yes, sir.

‘Q. He had asked you before where it was that you were sitting? A. Yes, sir.

‘Q. And you knew just where to put your finger when he told you, you knew just where to put your finger, didn't you? A. Yes.

‘Q. You had done it in his office? A. I never had done it in his office. He just showed me the plan.

‘Q. You showed him where you sat in his office on the plan? A. Yes.'

He made a statement at a hearing at the office of the American Steel & Wire Co. and made a statement in court before Judge Whiting. Mr. Reid had read over what he said at the hearing. He was sitting outside of No. 3 rod mill and there was a great deal of noise in the mill. One couldn't hear anything.

‘Q. As you sat outside, could you hear the noise inside? A. A little, not much.

‘Q. I thought you said there was so much noise inside? A. When we were inside there was a lot of noise, and when we came outside we couldn't hear it.

‘Q. I thought you said there was so much noise Mr. Kelley couldn't hear you. A. Probably he did not hear me.

‘Q. You mean the noise was so much that Mr. Kelley couldn't hear? A. No.

‘Q. I thought that was what you said. A. He didn't hear me; that was all.'

Both electric lights were lighted and it was by the electric light that he saw the engine. Kelley was pretty old and walking a little bent. He walked bent over a little and he was walking with his head bent over a little that night. He could not tell how close Kelley was to the nearest rail of track A, but he was pretty close when the engine hit him on the side. When he testified before Judge Whiting on September 28, 1917, he said that Kelley was walking about 1 1/2 feet from the track when he was struck. That was true as he believed it at that time. It looked to him now as though Kelley was as close as that. He might have been closer than that.

There were no ties outside of the rail. It came up just nice and level. Kelley walked about 5 or 6 feet before they knocked him down; that is, he saw him walking about 6 or 8 feet before he was knocked down. He was walking along with his back to the engine all the time. Kelley did not look around and did not look back at all. He was walking along with his head slightly bent. He was walking so close to the track that the engine was bound to hit him. The witness hollered to Kelley because he saw that Kelley was too close to the engine and he saw that the engine was going to hit him. It was light there and the witness could see everything plainly. The space between the rail at track A and the rail at track C was all lighted up by the arc light. Kelley had a clear view of where he was walking. The headlight of the engine was lighted.

The witness had talked with counsel for the plaintiff every time he saw him about the speed of the engine. At the inquest before Judge Whiting he testified that the engine was going pretty fast, as fast as a man walks and that is what he now meant. The engine slowed down and stopped. It went beyond the switch, and he saw it come back on track B. In the cab of the engine there was a brakeman and engineer. He saw the engineer and fireman as they got off the engine. He testified at the inquest that the engineer and fireman were on the engine and he saw them on the engine in the cab of the engine. The engine was going about as fast as a man could walk and it was reducing its speed all the time. The noise in the mill would not prevent him from hearing the ringing of the bell. He was watching to see if the bell was not ringing. He did not tell Mr. Parent that the bell was ringing.

Thomas Sullivan, called by the plaintiff, testified:

That at the time of the accident he was and is now employed at the American Steel & Wire Company south works, Quinsigamond, as a night broad gauge yardmaster; that he knew Mr. Kelley, and that he had no jurisdiction over him; that he did not know what Mr. Kelley's business was, only what he had seen him do; that Mr. Kelley worked for the American Steel & Wire Company, and had charge of two or three men that loaded rod cars; that the rods would be put on the narrow gauge cars, and then the narrow gauge cars would be run to the dock or high track, and the rod car would be loaded onto a broad gauge car called a rack car; that Mr. Kelley's work was to see that these small rod cars were loaded onto the rack cars; that he had seen him around the yard at night carrying a lantern off and on and looking at the tags; that Mr. Kelley had an office, known as the rod yard office, where he would go to have his lunch and other things, but he had never seen what he was doing there; that the loading dock consists of two tracks that lead into a cement foundation and that foundation is just the height of the rack car and they connect the rack car in the cement foundation; that the rod cars are run up grade on a trestle to the cement foundation and are run from there onto the rack cars which have been backed up there; that the broad gauge engine comes along and the rack cars are sent to the north works or to any works of the American Steel & Wire Company; that Mr. Kelley's duties would take him to the loading dock; that he has seen him checking cars; that the nature of the ground between all the tracks around the coal track switch is well beaten; that he has seen people between tracks A and C and in all parts between the bond factory and rod mill No. 3 (it was agreed that the jury had a view of the nature of the ground between the various tracks in the vicinity of the coal track switch); that on the evening of the accident he was with the conductor of the switcher that struck the intestate; that they had been to the dock about 50 yards east of corner of bond factory; that the engine had set the empty racks. It was disconnected from the rack cars at the time. They were then going to the spring mill, going to go down on track A; spring mill was to the east. The engine had previously put onto the dock some rack cars and was going down on the coal track B. He was standing up with the conductor.

In order to go to the spring mill ‘you go through the bloom yard.’ The engine was going to go down track A. It had to go down to take the switch. Kelley was struck near the switch. He put him on the stretcher and saw him as he was lying on the ground. It was near K. Kelley was near the switch and he measured the distance after he returned from the hospital. He did not see Kelley struck. He saw the engine while it was disconnected from the cars and stopped down on the coal yard track. There were two brakemen on the rear running board of the engine; the conductor was with him. He did not know who was in the cab of the engine; he did not know whether the engineer was there or not; he did not know whether the fireman...