Morris v. Boston & M.R.r.
| Decision Date | 25 November 1903 |
| Parties | MORRIS v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas E. & Jos. W. McConnell, for plaintiff.
Chas M. Thayer and J. Otis Sibley, for defendant.
This is an action brought by a section hand run into by a wild engine pushing a snowplow. It was the plaintiff's duty to clear out a switch the day after the heaviest snowstorm of the year--a storm which left the snow 'waist high all over the tracks.' The switch in question was east of Wachusett Station. Going west from the switch, the place of the accident, Wachusett Station was about 200 yards distant, on the right side of the track; and a little west of the station was a sharp curve, also on the right. About 4 o'clock in the afternoon of the day after the storm, the plaintiff began to clear this switch for the second time that day. The switch led from the east-bound track to a side track running parallel with it, and re-entering the east-bound track beyond Wachusett Station. There was no cross-over to the west-bound track at this point. The switch led from the side track to the east-bound track, and ended there. The plaintiff testified, and the jury were warranted in finding, that the snow lay three feet deep 'in between the west and east bound track and about the same on both sides'; that 'the snow was piled high alongside of the track,' and in the center 'between the tracks.' It was not snowing at the time, but the wind was blowing very hard, 'and the snow was drifting so that it was blinding, almost, so that you could hardly see.' The point in question was on an embankment where the wind had a clean sweep. Soon after the plaintiff went to work a west-bound freight train passed, and the guard on the cowcatcher was throwing the snow to such a distance that the plaintiff not only got off the west-bound track, but crossed over to the other side of the east-bound track to let it go by. After this train passed, the plaintiff looked each way, and continued digging snow; standing between the east-bound and west-bound tracks, bending over, with his back to the west, and looking to the east. The reason given by him for this was that he could see some 100 yards only; that against trains running west he had no protection, and against trains running east he relied on the whistle and the bell, which he knew were called for by the rules of the company. Only a moment after he looked both ways, the engine with the snowplow came round the curve without sounding the whistle or ringing the bell, coasting down a grade of 60 feet to the mile, with steam shut off; and he was struck by it, or by the snow it threw off. It appeared that the foreman had told the plaintiff, with other employés, the day before the accident, to look out for themselves and keep out of the way of trains, and that a fellow workman had given him the same warning that afternoon.
The defendant asked the presiding judge to order a verdict for the defendant on the ground that the plaintiff was not in the exercise of due care. This was refused, and a verdict was found for the plaintiff. We are of opinion that the defendant's exceptions to the refusal to give that ruling must be sustained. By the nature of his employment, a section hand on a steam railroad must look out for passing trains, and such is the settled law of the commonwealth. Shepard v. Boston & Maine Railroad, 158 Mass. 174, 33 N.E. 508; Lynch v. Boston & Albany Railroad, 159 Mass. 536, 34 N.E. 1072; St. Jean v. Boston & Maine Railroad, 170 Mass. 213, 48 N.E. 1088; Jean v. Boston & Maine Railroad, 181 Mass. 197, 63 N.E. 399; Dolphin v. New York, New Haven & Hartford Railroad, 182 Mass. 509, 65 N.E. 820. See, also, Shea v. Boston & Maine Railroad, 154 Mass. 31, 27 N.E. 672. The rule of law is the same elsewhere. Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758; Pennsylvania Railroad v. Wachter, 60 Md. 395; Carlson v. Cincinnati, Saginaw & Mackinaw Railroad, 120 Mich. 481, 79 N.W. 688. This was enforced in the case at bar by rules 26 and 739 of the defendant railroad, and by a caution to that effect given to the plaintiff by his foreman the day before the accident, and by a fellow workman on the very day in question.
The plaintiff, however, contends that the jury were warranted in finding for him; that they were warranted in finding that his work was such that he had to stand between the tracks, and to turn his back to a train coming on the east-bound track; that he had a righ to rely on the whistle and the bell required by rules 95b and 705 to warn him of a train on that track, and if not, he used his eyes so far as his work admitted of his doing so. We are of opinion that the plaintiff is right in his contention that the evidence warranted a finding that he had to stand between the two...
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