Obertoni v. Boston & M.R.r.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LORING, J.
• Citation: Obertoni v. Boston & M.R.r., 186 Mass. 481, 71 N.E. 980 (Mass. 1904)
• Decision Date: 18 October 1904
• Parties: OBERTONI v. BOSTON & M. R. R.

186 Mass. 481

71 N.E. 980

OBERTONI v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Berkshire.

October 18, 1904

COUNSEL

John H. Mack, for plaintiff.

Dana Malone, for defendant.

OPINION

LORING J.

The evidence in this case warranted a finding that the plaintiff a boy eight years of age, found a signal torpedo on the planking of the railroad at a grade crossing of a highway that he took it home, and, not knowing the danger, cracked it with a rock, and was hurt. In addition, there was the testimony of one Paris that 'a brakeman threw the torpedo to the flagman at the crossing, and it dropped at his feet as he did not catch it; that the flagman threw it back to the brakeman, and he did not catch it, and the torpedo dropped to the ground'; that, 'after the train went by, the flagman went back to his covered station without picking it up.' The defendant contends that there was no evidence of negligence on its part, and we are of opinion that in this contention it is right. The plaintiff's position is that, if the story told by Paris was believed, the defendant was liable; and he relies on Harriman v. Railway Co., 45 Ohio St. 11, 12 N.E. 451, 4 Am. St. Rep. 507, in support of that contention, to which may be added the subsequent case of Railway Co. v. Shields, 47 Ohio St. 387, 24 N.E. 658, 8 L. R. A. 464, 21 Am. St. Rep. 840, as cases of the highest court of another state. But we are of opinion that, if the torpedo came to and was left on the planking in the way testified to by Paris, the defendant is not liable, and for the reason that the jury were not warranted in finding that the brakeman and flagman, in throwing the torpedo back and forth, and leaving it on the crossing, were acting in the course of their employment. There is nothing in the evidence in this case, or in the common knowledge of mankind as to railroad signal torpedoes, which would make it the duty of a brakeman to throw a torpedo to a flagman. All that was declared as to the use of railroad torpedoes in evidence in this case was that 'signal torpedoes were used by railroads in signaling, being fastened upon the rails and containing an explosive.' There was nothing in the evidence showing that it belonged to a flagman at a railroad crossing to signal trains by torpedoes or otherwise. Much less is that within the common knowledge of mankind. If the use of railroad torpedoes is a fact within such common knowledge at all, the flagman has nothing whatever to do with signaling trains or with torpedoes. The case comes within the rule laid down in Howe v. Newmarch, 12 Allen, 49, which was applied in Hankinson v. Lynn Gas & Electric Co., 175 Mass. 271, 56 N.E. 604, and Brown v. Boston Ice Co., 178 Mass. 108, 59 N.E. 644, 86 Am. St. Rep. 469. See, also, McCarthy v. Timmins, 178 Mass. 378, 59 N.E. 1038, 86 Am. St. Rep. 490. The two cases from Ohio relied on by the plaintiff in the case at bar are entitled to great consideration as cases of the highest court of another state, but, after a careful consideration of them, we are of opinion that they are not in accordance with the settled law of this commonwealth, and should not have been followed by the judge presiding at the trial.

The remaining question is whether the plaintiff was entitled to go to the jury on the fact that the torpedo was found on the planking. A witness put upon the stand by the defendant contradicted the entire story told by Paris. That entitled the...