Shepard v. Boston & M.R. Co.

• Decision Date: 01 March 1893
• Citation: 158 Mass. 174,33 N.E. 508
• Parties: SHEPARD v. BOSTON & M.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 174

33 N.E. 508

SHEPARD v. BOSTON & M.R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

March 1, 1893

COUNSEL

Sheehan & Cutting and William A. Gile, for plaintiff.

Frank P. Goulding, for defendant.

OPINION

HOLMES, J.

This is an action of tort for personal injuries brought under the employers' liability act, (St.1887, c. 270, § 1, cl. 2,) alleging that the injuries were caused by reason of the negligence of a person in the service of the defendant intrusted with, and exercising, superintendence. At the trial the judge directed a verdict for the defendant, and the plaintiff excepted. The case was this: The plaintiff was on a hand car, and was run into by a "wild train," as it is called; that is, a train running by special orders, and not regularly to be expected at the same time. The train and the hand car were moving towards each other round a curved ledge of rock, and the ledge prevented their seeing one another until within a short distance,--say from 90 to 50 feet. The train was on an up-grade, going 10 or 12 miles an hour; the hand car, on a down grade, going from 12 to 15 miles an hour, probably faster than the train. It was a common thing for wild trains to come along, and the plaintiff, who had worked on this road as a section hand for the greater part of the last 15 years, "knew about the habits of running the road." The rules of the defendant provide that "engine men and conductors who are to run wild trains or engines will see that the train preceding them carries a red signal for them," and that this is a notice to section men that a wild train is to follow. The rule goes on: "If, however, for any reason, it is impossible for them to do so, they must *** run at a slow rate of speed around all curves." Another rule is "Wild trains will, when a flag has not been sent on a previous train, before turning any curve, reduce rate to a speed not exceeding fifteen miles per hour." In the present case it was impossible for the wild train to get the red flag onto the train next ahead, because the latter had started. As has been said, it obeyed the rules as to speed. Another rule provided that "wild trains may be run over the road on telegraphic orders without notice."

There was no direct evidence that the plaintiff knew the rules, but perhaps it might be presumed. The section foreman in charge of the hand car had a copy of them. They are material only as admissions of what precautions were proper, and so far as they may have led those to whom they were communicated to expect conduct in accordance with them.

Stopping at this point, it is plain that the defendant had a right to send trains over its tracks at whatever times it saw fit, and the rules, on their face, gave notice that it intended to exercise its right. The rules gave notice, on their face also, that, while the signal ordered would be a warning when it was seen, in some cases no such warning would be given, and therefore that all persons interested must...