Regan v. Boston & Maine Railroad

94 N.E. 691, 208 Mass. 520, 1911 Mass. LEXIS 869

• Court: Massachusetts Supreme Judicial Court
• Decided: April 4, 1911
• Status: Published

Opinion

Rugg, J.

This is an action of tort to recover damages for the conscious suffering and death of a foreman of a section gang in the employ of the defendant. The plaintiff’s intestate was working in a railroad yard, where there were frequent shiftings of cars and passing of locomotives, and he was repairing a track called “thirteen,” adjoining and branching from which was another called “fifteen.” There was evidence tending to show that one Currier, who was the conductor of a shifting crew in this yard, asked the plaintiff’s intestate if he could set “two cars in ” on track “• thirteen,” and he was answered, “ Yes, you can, but you can’t bother me any more until I have this job done.” Currier replied, “ All right,” and soon after put two cars on that track. About half an hour later by Currier’s direction a car was shunted on to track “ fifteen ” which struck the plaintiff’s intestate as he was stooping at his work on track “ thirteen,” very near its junction with track “ fifteen ” and where the two tracks were ten to eighteen inches apart.

It is plain that if there had been no talk between Currier and her intestate the plaintiff could not recover. It was said in Morris v. Boston & Maine Railroad, 184 Mass. 368, 371, “ By the nature of his employment a section hand on a steam railroad must look out for passing trains, and such is the settled law of the Commonwealth.” The same rule applies in a freight yard where the danger arises from single cars, locomotives or parts of trains. Byrnes v. New York, New Haven, & Hartford Railroad, 195 Mass. 437. Dolphin v. New York, New Haven, & Hartford Railroad, 182 Mass. 509. Lynch v. Boston & Albany Railroad, 159 Mass. 536.

The conversation with Currier was susceptible of the interpretation that he, being in charge of the shifting, agreed with the plaintiff’s intestate that no cars after the two specifically mentioned would be sent down upon any track in such a way as to interfere with the work the latter was doing on track “ thirteen.” If this was found to be the fair import of the language used, then the intestate while so engaged and relying upon this, assurance was relieved of the duty of watchfulness as to cars coming from Currier’s engine. Edgar v. New York, New Haven, Hartford Railroad, 188 Mass. 420. Santore v. New York Central & Hudson River Railroad, 203 Mass. 437. Welch v. New York, New Haven, Hartford Railroad, 182 Mass. 84.

Exceptions overruled.