Byrnes v. New York, New Haven, & Hartford Railroad , 195 Mass. 437 ( 1907 )

Sheldon, J.

The plaintiff waives her exceptions to the admission and exclusion of evidence, and relies solely on the claim that she was entitled to go to the jury on the issue as to the negligence of the engineer who was in charge of the engine that struck her husband. R. L. c. 106, § 71, cl. 3. We have not found it necessary, however, to consider this question, for we are of opinion that her husband was himself guilty of negligence which contributed to the accident.

He was an experienced railroad man. He was walking along by the side of the “ run-around ” track, so called, in the defendant’s yard, and the engine that struck him was coming on that track, in the same direction, running backward with the tender ahead. Having walked a short distance by the side of the track, he started to cross the track in a diagonal direction, directly in front of the engine, with his back towards it as the tender approached him, and without looking behind him or taking any notice of its approach. The tender struck him, and knocked him down, and the engine went over him and killed him.

It is sought to excuse his failure to look behind him or take any precaution for his safety on the ground that the engineer failed to ring the bell of the engine, to keep a proper lookout, or to observe or act upon the warning cry given to him by another servant of the defendant who saw the plaintiff’s husband go upon the track and shouted to the engineer to stop. It was also claimed that the engineer was running at too high a rate of speed. But if we assume that there was evidence of negligence of the engineer in these respects, the plaintiff’s husband was yet not relieved of the duty to use reasonable care for his own safety. He stepped voluntarily and deliberately in front of this moving engine, within a very short distance of the approaching danger, when a look would have been enough to put him on his guard and enable him to avoid the accident. He knew that this “ runaround” track was likely to be in use at any time, although it was not frequently used. He was in a highly dangerous place, where he was called upon to use his eyes and ears for his own safety, and he wholly failed to do so. It is impossible to say that his conduct in starting to go diagonally across the track almost directly in front of an approaching engine in plain sight was anything but careless. Dolphin v. New York, New Haven, & Hartford Railroad, 182 Mass. 509. Vecchioni v. New York Central & Hudson River Railroad, 191 Mass. 9.

Exceptions overruled.