Maher v. Boston & Albany Railroad , 158 Mass. 36 ( 1893 )

Barker, J.

1. There is sufficient evidence to justify the inference that the deceased was in the exercise of due care. His duty required him to be on the rear car of the train. This was a tall refrigerator car attached to the rear end of the caboose. When he left the caboose, he was told to get on the top of this car with the flag, ready to flag the rear end; and one witness saw him getting on the car, holding to the brake-wheel. His duty required him to watch the rear of the train, and it may well be inferred that he rode on the top of the car with his face to the rear. It was not negligent for him so to ride, although he knew there were low bridges under which the car must pass, because he had the right to suppose that the tell-tales would be in order and in their proper position, and that he would by means of their action, receive sufficient warning to enable him to avoid collision with bridges. There is a fair presumption that he, a man skilful and able in his business, who had just entered on the service of a new employer, and who, in the performance of an explicit order, had gone to attend to work which required him to look in the direction opposite that where the danger lay by which he was killed, was engaged in watching the rear of the car, and if so he could not be blamed for not knowing he was about to come in contact with the bridge. In Corcoran v. Boston & Albany Railroad, 133 Mass. 507, it was impossible to say whether the deceased was knocked from the train by contact with overhanging ice, or fell upon the track from some other cause. In Riley v. Connecticut River Railroad, 135 Mass. 292, the position of the brakeman was at the head of the train, and his duty required him to keep watch in the direction of the bridge. So in Shea v. Boston Maine Railroad, 154 Mass. 31, the employment necessarily required him to look out for all engines and trains, as they might come at any time. In the present case the deceased was required to look out for a bridge only when warned by the tell-tales. In Tyndale v. Old Colony Railroad, 156 Mass. 503, it was the duty of the deceased, as track inspector, to keep his tricycle out of the way of passing trains; and there was no evidence to show what he was doing at the time of the accident or how it occurred. We regard this case as analogous to Maguire v. Fitchburg Railroad, 146 Mass. 379. The deceased was rightfully in the place of danger, and was not wanting in diligence in suffering himself to come in contact with a bridge of which the tell-tale gave no warning.

2. Assuming that the deceased was knocked from the rear car by the contact of his head with the bridge, the evidence justifies the inference that he died instantly, or without conscious suffering. The speed of the train was about twenty miles an hour, and the lesions upon his head were sufficient to produce instant death. The men in the caboose, although very near him, heard no outcry, and the defendant’s workmen upon the other train, who picked up the dead body, were not called as witnesses. It is fair to infer that, if they had seen any indication that the deceased lived ’after receiving the blow upon the head, they would have been called. See Mulchahey v. Washburn Car Wheel Co. 145 Mass. 281.

3. We have no doubt that the defendant is not answerable for the fact that the refrigerator car was drawn behind the caboose, or that the train was run under the bridge with the car in that position. Any risk to which the deceased was exposed because the refrigerator car was behind rather than in front of the caboose was obvious and apparent, and was assumed by the deceased; nor was the speed of the train, if upon the evidence it could be found excessive, a circumstance for which the defendant was answerable under the declaration. The second and fourth requests might therefore have been properly given, but we see no reason to suppose that the omission to give them worked any injury to the defendant. The report of the charge makes it evident that, while the claim that the car was run carelessly was adverted to, the case was put to the jury by the presiding justice upon the other contention of the plaintiff only; namely, that the defendant did not sufficiently guard the approaches to the bridge. They were instructed that the plaintiff must satisfy them that the defendant was negligent in not having its tell-tales, and that the absence of the tell-tales was the cause of the accident, and under the charge the jury could not have rendered a verdict for the plaintiff upon the other theory of the case. It is apparent that the omission of the presiding justice to deal specifically with the second and fourth requests was because he had in effect disposed of them by telling the jury that in order to find for the plaintiff they must be satisfied that the defendant was negligent in not having the tell-tales, and that their absence was the cause of the accident. When he put the case upon that basis, the matters embraced in the second and fourth requests became immaterial, and were doubtless considered so by him; and unless the defendant called his attention, after the charge, to the omission to give them as a ground of exception, we think the defendant must be taken to have acquiesced in this treatment of, the case; while the jury were not distinctly told that they could not find for the plaintiff on the ground that the car was negligently placed or run, they were so told in effect, and we see no reason to believe that the verdict was upon any other ground than the absence of the tell-tales.

Exceptions overruled.