Moynihan v. Boston & M.R.R.

• Decision Date: 26 May 1917
• Citation: 116 N.E. 225,227 Mass. 180
• Parties: MOYNIHAN v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 180

116 N.E. 225

MOYNIHAN

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

May 26, 1917.

Report from Superior Court, Middlesex County; Patrick M. Keating, Judge.

Action by Catherine Moynihan, administratrix, against the Boston & Maine Railroad. The trial judge directed a verdict for defendant and reported the case for determination by the Supreme Judicial Court. Judgment for defendant on the verdict.

Jas. J. Kerwin and Jas. C. Reilly, both of Lowell, for plaintiff.

Trull & Wier and John M. O'Donoghue, all of Lowell, for defendant.

CROSBY, J.

This is an action to recover damages for the death and conscious suffering of the plaintiff's intestate, Jeremiah Moynihan, while he was in the employ of the defendant as a trackman in its freight yard in Lowell on June 2, 1916.

The first count is to recover for the death of the intestate, and is brought under St. 1906, c. 463, pt. 1, § 63, as amended by St. 1907, c. 392, as amended by St. 1912, c. 354. The second count is upon the liability at common law to recover for conscious suffering of the intestate. The third and fourth counts were waived by the plaintiff at the close of the evidence.

While the defendant contended at the trial that the intestate was not in its employ at the time of the accident, it could have been found upon conflicting evidence that he was so employed.

He was run over by a shifting train known as No. 244, and received injuries which resulted in his death. The members of the crew of this train testified that they saw Moynihan about ten minutes before the accident; that at that time he was walking in a westerly direction through the freight yard at a point some distance east of the School Street bridge; when he was so seen the train was proceeding in an easterly direction on what was called the Concord track, and backed down a sidetrack to get some cars; after that the train proceeded in a westerly direction; it consisted at that time of an engine drawing ten or twelve freight cars and was pushing a freight car ahead of it which had a broken draw-beam on the front end or the end away from the engine. There was evidence to show that when the train had reached a point in the freight yard west of the School Street bridge it stopped, and then moved back toward the east and kicked a car onto the sidetrack, and stopped. Moynihan was found under the train while it was at rest at a point about one hundred feet west of the bridge.

The plaintiff contends that the deceased was found under the train after the movement to the west had come to a stop and before the train moved toward the east for the purpose of kicking the car upon the sidetrack. On the other hand it is the contention of the defendant that the deceased was not discovered, and that the accident did not occur, until the train had made the last movement toward the east...