Nihill v. New York, New Haven, & Hartford Railroad , 167 Mass. 52 ( 1896 )

Morton, J.

Assuming that the fireman was a person in charge or control of the engine and cars, and that Tone was the superintendent or was acting as superintendent, we think that there was no evidence which fairly would have warranted the jury in finding that, at the time when the cars were backed and the plaintiff’s intestate was killed, either the fireman or Tone knew or had any reason to suppose that he was between the cars, and therefore they were not guilty of negligence in failing to warn, him, or to give any signal of the backing of the cars.

Further, the plaintiff’s intestate knew that two attempts had been made to couple the cars, which had failed, and that the attempt to couple them had been suspended, and we think that when he went in between the cars again to couple them, it was his duty to give some notice of his presence to Tone, or to those in charge or control of the engine and train. This he failed to do, and was therefore wanting in due care. Perry v. Old Colony Railroad, 164 Mass. 296. McLean v. Chemical Paper Co. 165 Mass. 5. Exceptions overruled.