286 Mass. 390 | Mass. | 1934
These actions under the Federal employers’ liability act to recover in the first case for the conscious suffering and death of the plaintiff’s intestate, and in the second for the death of the plaintiff’s intestate, are brought by the widows of Thomas P. Hanley and Jeremiah J. Murphy, respectively, as administratrices of their husbands’ estates. The cases were consolidated by agreement of the parties, and are before this court by a joint bill of exceptions. During a trial in the Superior Court with a jury, at the close of the evidence the plaintiffs respectively waived all counts of the declarations, except those charging the defendant with negligence on the part of its servants and agents. In each case there was a verdict for the plaintiff.
It was not disputed by the defendant that on January 20, 1928, the date of the accident, it was a common carrier engaged in interstate commerce; that Murphy died January 21, 1928, and Hanley died January 20, 1928. It was
The engineer of this train testified that he saw the two men when he reached a point one half mile away from where they were struck, and noticed that both of them were on the track; that at that time the train was going at a speed of about six miles an hour — certainly not over ten miles an hour; that when he saw the men he blew the whistle once; that when he did so there was a train coming in the opposite direction on track three; that this train was then about a quarter of a mile beyond where the men were at work, that is between them and the Boston station. He further testified that he was on the right side of the engine cab, and the men were to the left of the track as hp faced them; that he continued to see them as he ap
The fireman on the train, called by the defendant, testified that the engineer shut off steam that morning in the Malden station about three miles from the point of the accident; that the train was on time and “drifted”; that he was watching the signals; that he heard the engineer sound his whistle; that at that time the decedents were practically two hundred yards away; that the engineer gave a series of short, sharp blasts; that he then first
At the close of the evidence the defendant filed a written motion in each case for a directed verdict. The motions were denied.
It is provided by § 2 of the Federal employers’ liability act that the interstate carrier is liable for the injury or death of its employees occurring while engaged in interstate commerce and “resulting in whole or in part from the negligence of any of” its employees. Cruzan v. New York Central & Hudson River Railroad, 227 Mass. 594. Delaware, Lackawanna & Western Railroad v. Koske, 279 U. S. 7, 10. The only negligence upon which the plaintiffs rely is that of the engineer and fireman of the train which struck and killed the plaintiffs’ intestates.
We are of opinion that upon the evidence verdicts could not properly have been directed for the defendant. The testimony of the engineer above set forth shows that he knew the men were in a dangerous position, and also that he knew that the noise of the train coming from the opposite direction to which the men were facing might prevent them from hearing the single sound of the whistle half a mile from where they were ‘working, and that they did not hear the bell if it was ringing. Although the fireman testified that there were several blasts from the
It is settled by the law of this Commonwealth and in other jurisdictions that from the nature of his employment an employee on a steam railroad must look out for passing trains, and in the absence of special circumstances those in charge of trains owe no duty to fellow employees working on or near tracks to protect them from injury. It was said in Cruzan v. New York Central & Hudson River Railroad, 227 Mass. 594, at 597: “It may be assumed that, if the fireman or engineer of the passenger express train had seen Cruzan in a place of danger and had failed to use care to protect him, there would have been evidence of their negligence. But there was no evidence that either the engineer or fireman saw Cruzan in time to give him any warning.” And in Chesapeake & Ohio Railway v. Mihas, 280 U. S. 102, it was said at page 108: “There is nothing in the record to show that employees engaged in the switching operation knew or had reason to believe that Mihas was in any position of danger. In the absence of such knowledge or ground for belief, they were not required to warn him of the impending switching operation or take other steps to protect him.” These cases and the other cases cited by the defendant are distinguishable in their facts from the cases at bar, where the engineer saw the decedents in a place of great peril when he was half a mile away, and watched them up to the time his view of
It could have been found that the engineer, being aware of the presence of these men who were in plain sight so near the track that they might be run down, was guilty of negligence.
It follows that verdicts for the defendant could not properly have been ordered. See New York, New Haven & Hartford Railroad v. Pascucci, 46 Fed. Rep. (2d) 969; Carfelo v. Delaware, Lackawanna & Western Railroad, 54 Fed. Rep. (2d) 475; Southern Railway v. Verelle, 57 Fed. Rep. (2d) 1008, 1012.
It is the contention of the defendant that the plaintiffs’ intestates assumed the risk, and on that ground the plaintiffs cannot recover. Respecting this issue the burden of proof was upon the defendant. “At common law the rule is well settled that a servant assumes extraordinary risks incident to his employment or risks caused by the master’s negligence which are obvious or fully known and appreciated by him.” Boldt v. Pennsylvania Railroad, 245 U. S. 441, 445. It does riot follow, however, that an employee of a railroad corporation, whose work takes him near or upon the tracks where there is danger of his being run down by a train, assumes the risk of injury in all circumstances. In the cases at bar negligence of the engineer in control of the train was not a risk assumed by the decedents’ contract of
The exception to the admission of evidence of a custom for engineers on the defendant’s railroad upon seeing persons on the track or so near it as to be in a position'of danger to give them warning by a series of short blasts cannot be sustained. The defendant’s engineer testified that such had been the habitual custom to his knowledge during the forty-seven years he had been in the defendant’s employ, and was the general custom on the defendant’s railroad. We are of opinion that this evidence was admissible. It is not contended by the plaintiffs that there was any rule of the defendant that such warning should be given. That fact, however, does not affect the admissibility of evidence of a habitual and general custom. It could have been found that notwithstanding this custom the engineer ignored it and gave no warning apart from the sounding of a single blast of the whistle when his train was half a mile away from the men, and five minutes before they were struck. The evidence was admissible on the issue of the defendant’s negligence, and also upon the question of assumption of risk. In view of the character of the work of the decedents as signal men, and the circumstance that the work was required to be performed near the tracks of the railroad, it might fairly be found that they were familiar with the general custom and relied upon it. Davis v. New York, New Haven & Hartford Railroad, 159 Mass. 532, 535, 536. Hines v. Stanley G. I. Electric Manuf. Co. 199 Mass. 522, 525, 526. Hines v. Stanley G. I. Electric Manuf. Co. 203 Mass. 288, 289, 290. Santore v. New York Central & Hudson River Railroad, 203 Mass. 437, 440, 444. La Fond v. Boston & Maine Railroad, 208 Mass. 451, 457. Director General of Railroads v. Temp
The witness Goddard, called by the plaintiffs, who it could have been found qualified as an expert/was allowed to testify, subject to the defendant’s exception, that by certain tables in general use by insurance companies the amount necessary at various ages to produce a certain income for the normal expectancy of life could be shown, that the tables would show what principal sum would be necessary to give an income for each of those years of expectancy so that at the end of that period that sum would be exhausted, but that the income would remain through those years. The witness then was allowed to testify subject to the defendant’s exception upon the question of damages. It was said by Knowlton, J., speaking for this court in Rooney v. New York, New Haven & Hartford Railroad, 173 Mass. 222, at page 227, where similar evidence was considered: A “jury can apply the principle on which annuities are purchased only after they have found facts which form a proper basis for such a computation; but if all such facts are found and made definite, the principle on which such tables are computed can properly be used in estimating the amount to be allowed as a present sum to compensate for a probable annual loss for a probable term of years.” Banks v. Braman, 195 Mass. 97, 99-100. Fournier v. Zinn, 257 Mass. 575, 576. Pearl v. Omaha & St. Louis Railroad, 115 Iowa, 535, 541-542. The exception to the admission of this testimony must be overruled.
No error appears in the admission of the rule book to show that three short blasts mean to back up a standing train.
At the close of the evidence the defendant presented forty-nine requests for rulings in each case, some of which
The defendant saved several exceptions to the judge’s charge. A thorough reading of the charge fails to show any error of law. The judge therein dealt at length with the evidence. He fully and accurately presented to the jury the questions presented for their decision.
The entire record shows no error of law in the refusal to direct verdicts in favor of the defendant, in the admission of evidence, in the failure to give certain requests, or in-the instructions to the jury. It results that the entry in each case must be
Exceptions overruled.