Welch v. New York, New Haven, & Hartford Railroad , 176 Mass. 393 ( 1900 )

Knowlton, J.

The principal questions in this case are, whether there was evidence of negligence on the part of the defendant or of any of its servants, and whether there was evidence of due care on the part of the plaintiff’s intestate.

We think it plain that the tower man, whose duty it was to move the switch, was a person in “ charge or control of . . . any switch” within the meaning of St. 1887, c. 270, § 1, cl. 3. Even if another person gave him directions or exercised supervision over him in such a way as to be in charge of the switch in a broad sense, so that the railroad company might be liable for his negligence in giving or failing to give proper directions, we are of opinion that, situated in the tower as -he was, having complete manual control of the switch after receiving signals and orders from one below, his control and charge for the time were of a kind contemplated by the framers of the statute. There was testimony that Welch, the plaintiff’s intestate, had a green light which was used to signal the tower man and the train men, and that the signal for track Eo. 1 was simply to hold it up. A witness testified that he saw Welch give the signal for track Eo. 1 to the tower man by holding up his lantern and shouting, “ On one,” and that he saw the tower man throw up his hand as a signal that he heard. Then, instead of setting the switch for track Eo. 1, the tower man switched the train on “ three-house ” track. The action of the tower man in throwing up his hand was an indication that he understood the signal that had been given him, and his further action in moving the switch was equivalent to a representation that he had received the signal and understood it. The testimony of the witness tended to show that by the motion of his lantern Welch gave the recognized signal for track No. 1, and that he added a shout to the same effect. The jury might have found that the tower man was negligent in acting at all if he did not see and understand the signal, or in setting the switches wrongly if he did understand it. They might have found that the signal was given in such a way that it was negligence in him not to understand it correctly. His turning the switch in such a way as to send the train on the ■wrong track was the direct cause of the accident, and we are of opinion that there was evidence for the jury on this part of the plaintiff’s case.

Although Welch was a switchman whose station was at the switches just southerly of the place where he was killed, we do not understand from the evidence that it was his duty to be all the time just at these switches, but only in such close proximity to them as to be able to receive and give signals, and to do the other duties connected with his position. There was a brakeman’s house near by which was intended for his use, and we see nothing to indicate that there was any failure on his part to do his duty properly, or any lack of care up to the time that he came out of the brakeman’s house and stepped upon the track where he was struck by the train. It does not appear that it was any part of his duty, when the tower man turned his switch, to examine the dwarf switch signals which stood a foot or a foot and a half above the ground to see if the tower man had turned the switch rightly. The evidence was that at the time of the accident these signals were so covered with snow and ice that it was very difficult, if not impossible, to read them. Of course, if at any time he saw a dwarf signal which showed that the tower man had made a mistake, he would endeavor to correct the mistake. A terrible snow storm was then raging, which some of the witnesses said was the worst of the season. We are of opinion that it was a question of fact for the jury whether, under the circumstances, it was his duty to go to the dwarf .signals and clean off the snow and ice to see if the tower man had made a mistake. It seems that he was in the performance of his duty in walking away from the brakeman’s house across and along the tracks to a place where he could readily receive and give signals or do anything else that ought to be done while the cars were being put in their intended position, although he was not then going towards the switches. Unless he was negligent in not looking at the approaching cars and discovering that they were on the wrong track in time to escape them, there seems to be nothing to control the natural inference from his conduct that he was in the exercise of due care. If the train had been on the track where he had every reason to believe that it was coming, he could not have been injured. With the arrangement of cars on the other tracks as he had just seen them, it was impossible for the train to come on the track where he was walking while the train for which he had given the signal was being switched to track No. 1. He had every reason to suppose that he was in a place of perfect safety. Nothing but the failure of the tower man properly to execute the order which had just been given him could expose him to danger in the place where he was walking between “ three-house” track and the cattle track. The jury might well find that a man in the exercise of ordinary care, who had just given a signal to a tower man to send back a train of cars on track No. 1, and who had received from the tower man a response in acknowledgment of the signal, and who knew that no other train could come upon the “ three-house ” track or the cattle track while the train was being switched upon track No. 1, would think it safe to walk between these two tracks in the belief that the train, was being switched in accordance with the signal. In connection with the other facts, the inclemency of the weather was a circumstance of some importance. We think there was evidence of due care on the part of the plaintiff’s intestate which should have been submitted to the jury.

Upon the question whether Welch was in the exercise of due care, we are of opinion that it was competent for the plaintiff to show that the train was coming much faster than the usual and ordinary rate of speed for cars which were being shifted at that place. '

There was no error in the exclusion of the opinion of the witness as to how far Welch’s voice could be heard in the storm. The witness was not an expert, and upon a full statement of the conditions the jury could judge whether Welch could have been heard by the tower man.

The judge might well hold that the notice given to the defendant to produce its written rules was insufficient to justify the introduction of secondary evidence.

Although it does not clearly appear how far, if at all, the plaintiff was dependent upon her son for support, there was evidence that for a long time he had given her all his wages, and there was testimony from which the jury might have found that she needed the money to obtain the necessaries of life, beyond that which her husband could furnish, and that she was dependent on this son for support within the meaning of the statute. See McCarthy v. New England Order of Protection, 153 Mass. 314; Daly v. New Jersey Steel & Iron Co. 155 Mass. 1, 5; Houlihan v. Connecticut River Railroad, 164 Mass. 555.

Exceptions sustained.