Shea v. Boston & M.R. Co.
| Decision Date | 20 May 1891 |
| Citation | 27 N.E. 672,154 Mass. 31 |
| Parties | SHEA v. BOSTON & M.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from superior court, Suffolk county HAMILTON B. STAPLES, Judge.
In an action against a railroad company for the negligent killing of an employé, it appeared that at the place of the accident trains and engines were very frequent, that there was no legal duty to blow the whistle or ring the bell, and that deceased's employment was such as necessarily required him to look carefully for coming trains and engines. He was on the track when killed by an engine, and there was no evidence of what care he exercised. Held, that under St.1887 c. 270, § 1, making it necessary for plaintiff, in an action against an employer for the wrongful killing of an employé to prove that deceased was exercising due care when killed, a nonsuit was proper.
I.R Clark and Fletcher Ranney, for plaintiff.
Solomon Lincoln, for defendant.
This action was brought under the employers' liability act (St.1887, c. 270,) and by virtue of the first section it was necessary for the plaintiff to prove that the deceased himself was in the exercise of due care and diligence at the time he was killed. But the evidence introduced was at least as consistent with carelessness on his part as with his exercise of due care; indeed, it would seem to be more so. Trains and engines were very frequent. There was no legal duty to sound the whistle or ring the bell at this point. The employment of the deceased was such as necessarily required him to look out very carefully for coming engines and trains. There is nothing to show what pains he took to ascertain if an engine was coming. He was upon the track when the engine came along, and the rest is left for conjecture. There is no evidence that he took such precautions as due care and diligence required of him. The burden of proof which rested on the plaintiff upon this point was not sustained. Hinckley v. Railroad Co., 120 Mass. 257, 262; Crafts v. Boston, 109 Mass. 519; Griffin v. Railroad Co., 148 Mass. 143, 145, 19 N.E. 166. Since, under the limitation of the right to bring an action to one year from the occurrence of the accident, no new action can be brought for the cause sued upon, (St.1887, c. 270, § 3,) we have entertained the question, and determined it upon its merits, although it was not strictly regular to report the case to this...
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