Tyndale v. Old Colony R. Co.

• Citation: 156 Mass. 503,31 N.E. 655
• Parties: TYNDALE v. OLD COLONY R. CO. DOLAN et al. v. SAME.
• Decision Date: 23 June 1892
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 503

31 N.E. 655

TYNDALE v. OLD COLONY R. CO.

DOLAN et al. v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1892

COUNSEL

S.A. Fuller, for plaintiffs.

J.H Benton, Jr., for defendant.

OPINION

LATHROP, J.

These are two actions of tort, both under St.1887, c. 270. The first is brought by the administrator of the estate of Michael Dolan, and seeks to recover for the conscious suffering of the intestate in consequence of his being struck by a locomotive engine of the defendant, through the negligence of the persons in charge thereof, and in consequence of the negligence of officers or agents having charge of the dispatching of trains, the movement of cars velocipedes, and other rolling stock. The second action is brought under section 2 of the above-named act, by the next of kin of said Dolan, and it proceeds upon the theory that Dolan was struck by the engine and instantly killed, or, if not killed at once, that he died without conscious suffering. The two cases were tried together in the superior court. At the close of the plaintiffs' evidence the presiding justice ruled that there was no evidence upon which the jury could find for the plaintiff in the first case, or for the plaintiffs in the second case, and directed a verdict for the defendant in each case. The cases are before us on the plaintiffs' exceptions, which contain a full report of the evidence, and this shows the following state of facts Dolan was a track inspector in the employ of the defendant corporation. His duty was to run over one of the tracks of the defendant's road between Jamaica Plain and Clarendon Hills, on a three-wheeled car, called a "tricycle," which was operated by himself. On the morning of December 2, 1888, he started, at a little before 6 o'clock in the morning, from Jamaica Plain, for the purpose of inspecting the track. There were three tracks on that portion of the defendant's road, which it was his duty to inspect. One of these was used by inward trains, another by outward trains, and the third was liable to be used by trains going either way. He had no directions as to which track to go on, and he chose the third track, which was liable to be used at any time, especially by construction trains or extra trains. Dolan was last seen alive by an employe of the defendant, who was a crossing tender, and the tricycle was then going at the rate of eight or ten miles an hour. About five minutes afterwards, a train, consisting of a locomotive engine and caboose, passed on the same track, and going in the same direction, at the rate of 10 to 15 miles an hour. This train, it is admitted, struck the tricycle, although both the engineer and fireman testify that they knew nothing about the accident, until they reached Dedham, when, from indications on the locomotive...