Dunphy v. Boston Elevated Railway Co.

Massachusetts Supreme Judicial Court

Dunphy v. Boston Elevated Railway Co.

78 N.E. 479, 192 Mass. 415, 1906 Mass. LEXIS 966

CourtMassachusetts Supreme Judicial Court

DecidedJune 21, 1906

StatusPublished

Cited by7 cases

This text of 78 N.E. 479 (Dunphy v. Boston Elevated Railway Co.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunphy v. Boston Elevated Railway Co., 78 N.E. 479, 192 Mass. 415, 1906 Mass. LEXIS 966 (Mass. 1906).

Pincite

Opinion

Morton, J.

The plaintiff was struck and knocked off the track by a passing train while working in the defendant’s employment on the loop at the Dudley Street terminal station of the defendant’s railway in Boston, and this is an action to recover for the injuries thereby received. The declaration contained five counts, the first being at common law and the others under the employers’ liability act. The second count was for injuries caused by negligence on the part of a person entrusted with and exercising superintendence, whose sole or principal duty was that of superintendence. The case was submitted to the jury on this count only, the judge ruling that there was no evidence entitling the plaintiff to recover under the other counts. There was a verdict for the plaintiff, and the case is here on the defendant’s exceptions.

We think that the ruling was right. The plaintiff was set to work by Boyd, the superintendent, in what both knew to be a dangerous place. According to the plaintiff’s testimony he looked up to see if a train was approaching, and Boyd, who was [416]*416standing near, saw him do it and said “ All right, Jack,” and the plaintiff went on with his work. This, if believed, warranted the jury in finding that the plaintiff was in the exercise of due care and was justified in assuming that Boyd was looking out for him and in acting accordingly. The evidence showed that an approaching train could be seen one hundred and fifty feet away and that Boyd stood there with nothing to do, but gave the plaintiff no warning of the approach of the train that struck him. This warranted a finding of negligence on the part of Boyd. It was not contended that Boyd was not a superintendent. See Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532; Scullane v. Kellogg, 169 Mass. 544; Greenstein v. Chick, 187 Mass. 157; Lynch v. Stevens & Sons Co. 187 Mass. 397.

C. F. Choate, Jr., for the defendant. H. E. Bolles, (H. M. Channing with him,) for the plaintiff.

Exceptions overruled.

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Morton, J.

The plaintiff was struck and knocked off the track by a passing train while working in the defendant’s employment on the loop at the Dudley Street terminal station of the defendant’s railway in Boston, and this is an action to recover for the injuries thereby received. The declaration contained five counts, the first being at common law and the others under the employers’ liability act. The second count was for injuries caused by negligence on the part of a person entrusted with and exercising superintendence, whose sole or principal duty was that of superintendence. The case was submitted to the jury on this count only, the judge ruling that there was no evidence entitling the plaintiff to recover under the other counts. There was a verdict for the plaintiff, and the case is here on the defendant’s exceptions.

We think that the ruling was right. The plaintiff was set to work by Boyd, the superintendent, in what both knew to be a dangerous place. According to the plaintiff’s testimony he looked up to see if a train was approaching, and Boyd, who was [416]*416standing near, saw him do it and said “ All right, Jack,” and the plaintiff went on with his work. This, if believed, warranted the jury in finding that the plaintiff was in the exercise of due care and was justified in assuming that Boyd was looking out for him and in acting accordingly. The evidence showed that an approaching train could be seen one hundred and fifty feet away and that Boyd stood there with nothing to do, but gave the plaintiff no warning of the approach of the train that struck him. This warranted a finding of negligence on the part of Boyd. It was not contended that Boyd was not a superintendent. See Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532; Scullane v. Kellogg, 169 Mass. 544; Greenstein v. Chick, 187 Mass. 157; Lynch v. Stevens & Sons Co. 187 Mass. 397.

C. F. Choate, Jr., for the defendant. H. E. Bolles, (H. M. Channing with him,) for the plaintiff.

Exceptions overruled.

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Bluebook (online)

78 N.E. 479, 192 Mass. 415, 1906 Mass. LEXIS 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunphy-v-boston-elevated-railway-co-mass-1906.

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