Turley v. Boston & M. R. R.

• Decision Date: 27 July 1900
• Parties: TURLEY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

47 A. 261

70 N.H. 348

TURLEY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsboro.

July 27, 1900.

Exceptions from Hillsboro county.

Action by Hugh Turley against the Boston & Maine Railroad. A nonsuit was ordered, and plaintiff excepted. Exceptions overruled.

Case for injuries received by being shot while in the defendants' freight yard in Manchester by Thomas J. Saxton, an employé; of the defendants. The plaintiff testified that he went to the freight yard on January 15, 1899, as he had done frequently, to see if there were cars of coal consigned to local dealers, so that he might apply for a job of shoveling. While in the yard he heard shouting, and saw men running. Saxton walked up to him, seized him, asked him where he was going, and started to draw a blackjack, whereupon the plaintiff broke away and ran about 100 feet, when he was shot in the back. He made no assault upon Saxton. Saxton testified that: He was employed by the defendants to clean and care for the lamps in the freight yard. Prior to the day of the shooting, he had driven from the yard certain persons, denominated the "Scut Beer Gang." whose habit it was to loiter there, and who had fought with him and made threats against him. He reported these affrays to the defendants' agent, and was told to look out for himself. On January 15, 1899, Saxton saw members of the beer gang (the plaintiff being one of the party) going towards the freight yard. He followed them, and found the plaintiff on the watch. After an unsuccessful attempt to seize the plaintiff, Saxton ran down the yard, and, seeing others gathering, apparently to make a fight, fired a revolver at the end of a freight car for the purpose of frightening the crowd and protecting himself. He did not think the bullet could have hit the plaintiff. Saxton was not an officer or a watchman. He had no orders to drive the beer gang from the freight yard, and was required only to report their presence there; but, whenever he saw them going to the yard, it was his practice to follow them and order them off the defendants' premises. At the close of the plaintiff's evidence a nousuit was ordered, subject to his exception.

Sullivan & Broderick, for plaintiff.

Oliver E. Branch and Cyrus H. Little, for defendants.

PARSONS, J. As there was no evidence tending to show that the shooting of the plaintiff by Saxton resulted from any fault of the defendants, was directed by them or done by their authority, or was any part of Saxton's...