Robichaud v. New York, N.H. & H.R. Co.
| Decision Date | 26 February 1915 |
| Citation | 107 N.E. 975,220 Mass. 250 |
| Parties | ROBICHAUD v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. F. Cavanagh and P. A. Hendrick, both of Boston for plaintiff.
J. L Hall, of Boston, for defendant.
This is an action of tort brought under the Employers' Liability Act, St. 1909, c. 514, §§ 127-131.
At the close of the plaintiff's case the defendant rested, and the judge at its request directed the jury to find a verdict for the defendant.
A witness for the plaintiff, Brown, testified on cross examination that he had observed the intestate while he was performing the duties of flagman; that he appeared to be familiar with the rules of the company; that all the men were furnished with a book of rules; that he saw a book in the intestate's hands, and that it was similar to the books of rules of the defendant in respect to form, color and superscription, but he did not see the book open.
The judge against the objection of the plaintiff permitted the defendant to read to the jury, from a book in appearance similar to the one seen in the intestate's hands, rules numbered 777 and 835, each a rule of importance in the determination of the intestate's due care.
The above facts justified the judge's preliminary ruling and submission to the jury, but whether the intestate had or had not knowledge of the specific rules as read remained for the jury's determination. They might or might not infer such knowledge; indeed they might disbelieve the statement of the witness that the intestate appeared to have knowledge of the rules, or had in his hands a book of rules. It follows that rules 777 and 835 should be disregarded in considering whether the judge was right in directing a verdict for the defendant.
The intestate was a man of large experience in railroading. He had worked in this division and in this yard (Mansfield) for seven or eight years. He had been a flagman on this nightly 'run' for three months. At times he had been an emergency conductor and had taken trains in and out of the Mansfield yard. On the night of the intestate's death a freight train of 24 cars had come from East Providence to Mansfield. It arrived somewhere between 3 and 4 o'clock in the morning. It backed from the main track, over side track No. 3, to side track No. 5, leaving there the caboose and 3 cars. The conductor himself 'cut' the caboose and 3 cars, and notified the intestate that they could pick up the cars on track 5; then the intestate rode the 3 cars to their destination on the extension of track 3, and on arriving there gave the conductor the signal that all was right; that is to say, their position would not interfere with any movement on the other track. The engine then pulled the remaining 20 cars back upon track 3, and stood there. The conductor meanwhile went to the office to get his waybills and to ascertain what cars he was to take out. At the time of the accident 14 cars already had been placed on track 5. The yard brakeman brought to track 5...
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