Mears v. Boston & M.R. Co.

• Decision Date: 01 March 1895
• Citation: 163 Mass. 150,39 N.E. 997
• Parties: MEARS v. BOSTON & M.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 150

39 N.E. 997

MEARS v. BOSTON & M.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1895

COUNSEL

L.M. Child, for plaintiff.

Walter I. Badger and Thomas Hunt, for defendant.

OPINION

KNOWLTON J.

The plaintiff's husband was killed while inspecting cars in the defendant's freight yard, by being run over by a car that was one of two box cars thrown against the car on which he was working, by another car kicked off from a train, and run on a descending grade, with no brakemen upon it, until it struck the two cars which were left standing on the track with a space of about six or eight feet between them and the car at the end of which he was working. There was evidence tending to show that he was in the exercise of due care. He was in the performance of his duty, which required him to inspect the running gear, drawbars, links, and pins of cars left on the track where he found the car which he was inspecting. He had no notice that a car was to be kicked off and sent down the grade without a brakeman upon it, so as to strike the two cars which stood six or eight feet from that on which he was working. The two box cars were so situated as to cut off from his view the car which was approaching. It was contrary to the rule of the road to kick off cars, and send down a car in that way upon that track. It was a question of fact whether he used such care as was reasonable in the circumstances in which he was placed. Davis v Railroad Co., 159 Mass. 532, 34 N.E. 1070.

There was also evidence that he died without conscious suffering. The testimony tended to show that his body was crushed, and a witness who was near him at the time of the accident testified that he was "stone dead" when the witness reached him. What was said in regard to his taking steps did not necessarily imply any voluntary action or consciousness on his part. There was evidence tending to show that the conductor in charge of the train was negligent in violating a rule of the road in allowing the car to be kicked off and run down the track without a brakeman upon it, and without warning the plaintiff, or seeing whether there were persons working under the cars who might be hurt. The jury might well find that his negligence in these matters was a direct cause of the accident. We are of opinion that, upon the whole case, there was evidence in favor of the plaintiff, which should have been submitted to the jury. ...