Ray v. Western Union Tel. Co.

• Decision Date: 17 January 1927
• Citation: 154 N.E. 853,258 Mass. 303
• Parties: RAY v. WESTERN UNION TELEGRAPH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 303

154 N.E. 853

RAY

v.WESTERN UNION TELEGRAPH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 17, 1927.

Report from Superior Court, Suffolk County; W. Thayer, Judge.

Action of tort by Arthur F. Ray, administrator, against the Western Union Telegraph Company, to recover for death of plaintiff's intestate while in defendant's employ. Directed verdict for defendant, and case reported. Judgment for defendant.A. J. Santry, of Boston, for plaintiff.

A. P. Hardy, of Boston, for defendant.

CROSBY, J.

This is an action of tort to recover damages for the death of the plaintiff's intestate, Daniel Toomey, who at the time of his death was 15 years of age and a messenger boy in the employ of the defendant. The case is before us on a report by a judge of the superior court. It is agreed that when the accident occurred the defendant was an employer within the meaning of the Workmen's Compensation Act (St. 1911, c. 751, and amendments thereto) and that it was not insured in accordance with the provisions of the act.

It is stated in the report that on May 16, 1914, the intestate, who had been in the defendant's employ for about three months at one of its offices in Boston, was given a telegram to deliver by one Barrett, an employee of the defendant in charge of sending out messenger boys in answer to calls and of ‘checking’ telegrams which were sent out for delivery. One Katharine McCarthy was the manager and person in control of the office. The telegram given to Toomey was addressed to ‘Mr. Cecil Hodgman, passenger on the 1 o'clock train for New York, Back Bay station.’ The train referred to in the telegram was the Knickerbocker Express, a special limited train operated by the New York, New Haven & Hartford Railroad Company between Boston and New York. It stopped at the Back Bay station only long enough to take on passengers and baggage, which usually required two minutes; its next stop was Providence, R. I. Toomey arrived at the station and broarded the train in search of the passenger to deliver the telegram, but before he delivered it the train started and acquired speed quickly. Toomey rushed to the vestibule of the car, went down the steps and jumped; at that time the train was about 800 feet from the station. He struck on the roadbed of an adjoining track, about 20 feet in front of a train backing out, and, before that train could be stopped, it passed over him, causing injuries from which he soon after died without conscious suffering.

It also appeared that while the train was in motion Toomey came quickly behind the porter of the car and said, ‘Let me off.’ The porter, who was then in the act of closing the door covering the steps, said, ‘You cannot get off here.’ Toomey pushed the porter's hand aside and said, ‘Yes, I can,’ and went down the steps and jumped. It is further recited in the record that:

‘When the telegram was delivered by Barrett to Toomey, the latter was given no instructions as to the manner in which it was to be delivered, and was told nothing about the train on which the person to whom the telegram was addressed was supposed to be reiding. Toomey had never been advised by the said Barrett nor the said McCarthy, nor by the defendant nor addressed was supposed to be riding. Toomey in which telegrams addressed to passengers on trains were to be delivered.’

[1] As the defendant was not insured under the Workmen's Compensation Act, the only defense open to it is that there was no evidence of its negligence. Pope v....