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

• Citation: 167 Mass. 52,44 N.E. 1075
• Parties: NIHILL v. NEW YORK, N.H. & H.R. CO.
• Decision Date: 23 October 1896
• Court: United States State Supreme Judicial Court of Massachusetts

167 Mass. 52

44 N.E. 1075

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

Supreme Judicial Court of Massachusetts, Berkshire.

October 23, 1896

COUNSEL

C.E. Hibbard, J.B. Carroll, and W.H. McClintock, for plaintiff.

A.C. Collins, for defendant.

OPINION

MORTON, J.

Assuming that the fireman was a person in charge or control of the engine and cars, and that Tone was the superintendent, or was acting as superintendent, we think that there was no evidence which fairly would have warranted the jury in finding that, at the time when the cars were backed and the plaintiff's intestate was killed, either the fireman or Tone knew or had any reason to suppose that he was between the cars, and therefore were not guilty of negligence in failing to warn him, or to give any signal of the backing of the cars. Further, the plaintiff's intestate knew that two attempts had been made to couple the cars, which had failed, and that the attempt to couple them had been suspended; and we think that, when he went in between the cars again to couple them, it was his duty to give some notice of his presence to Tone or those in charge or control of the engine and train. This he failed to do, and was therefore wanting in due care. Perry v. Railroad Co., 164 Mass. 296, 41 N.E. 289; McLean v. Paper Co., 165 Mass. 5, 42 N.E. 330. Exceptions overruled.