Jacobs v. New York, New Haven, & Hartford Railroad
98 N.E. 688
Mass.
1912
Check Treatment
Braley, J.

The injuries to the plaintiff’s intestate which resulted in his death after a period of conscious suffering, were caused by the explosion of a railroad signal torpedo, the property of the defendant. It may be assumed, that the jury would have been warranted in finding upon the evidence the following facts: In the management of its business as a carrier of passengers, trains were provided with torpedoes, which whenever necessary were to be used by the flagman on the train ahead, to warn trains approach*98ing from the rear, that a preceding train not very far distant was passing over the same track. The warning consisted in the noise of the explosion, as the on-coming train struck the torpedo, which the flagman affixed to the rail by straps forming a part of the apparatus. To be effective, not only the torpedo must be exploded by contact with the train, but the detonation must be sufficiently great to attract the attention of trainmen. The jury properly could infer from these circumstances, and from the testimony of the plaintiff’s expert as to the character of the composition with which it was charged, as well as from the rule promulgated by the company, which was introduced in evidence, that the defendant knew, or by the use of due diligence should have known, that the torpedo contained a highly explosive compound. If exploded without proper precautions, or under extraneous conditions, pieces of the shell or case might fly with such force in various directions as to endanger the safety of persons in the vicinity. The use of a dangerous agency of this nature, which must be classed with gunpowder, and explosives like nitroglycerine, and dynamite in its various forms, while lawful, imposed upon the defendant the duty of talcing every proper precaution to prevent personal injury to those lawfully upon the company’s premises from explosions which might be precipitated through the carelessness of its servants. Derry v. Flitner, 118 Mass. 131. Oulighan v. Butler, 189 Mass. 287, 292. Dulligan v. Barber Asphalt Paving Co. 201 Mass. 227, 231.

The inquiry, accordingly, is whether the injury in question reasonably should have been anticipated by the defendant. Obertoni v. Boston & Maine Railroad, 186 Mass. 481. The train which came into the station where the intestate, a boy of fifteen years of age, and his young companions were waiting for the departure of friends, carried in the baggage car a torpedo to be used as a signal, which the jury could find was carelessly ejected by the defendant’s baggage master and fell within the railroad location. The evidence having warranted a finding, that the intestate was not a trespasser, it would follow that, if from the impact of the fall or from the innocent intermeddling of bystanders whose presence might have been anticipated an explosion had followed, injuring him, the company as matter of law would not have been exonerated. Lucas v. New Bedford & Taunton Railroad, 6 Gray, *9964. Bradford v. Boston & Maine Railroad, 160 Mass. 392. McKone v. Michigan Central Railroad, 51 Mich. 601. Illinois Central Railroad v. Hammer, 72 Ill. 347. Lane v. Atlantic Works, 111 Mass. 136.

But the defendant was not bound to foresee, that one of the intestate’s companions actuated doubtless by a boy’s impulse and curiosity in which apparently the intestate shared, to possess and explode the torpedo, would remove it almost immediately from the premises, and that after the lapse of ten days the experiment would be tried in the vicinity of their homes, and the intestate, who participated, would be fatally injured by the explosion. Denny v. New York Central Railroad, 13 Gray, 481. Quigley v. Clough, 173 Mass. 429, 430. Smith v. Peach, 200 Mass. 504. McDowall v. Great Western Railroad, [1903] 2 IC. B. 331. The accident is deplorable, but the wrongful asportation, which brought the intestate in contact with the exploding torpedo occasioned the mischief, and distinguishes the case at bar from Lane v. Atlantic Works, 111 Mass. 136, and the doctrine stated in Lebourdais v. Vitrified Wheel Co. 194 Mass. 341,344. The injury not having been caused by its negligence, the presiding judge correctly ruled, that there could be no recovery under either count, and in accordance with the terms of the report judgment must be entered for the defendant on the verdicts.

So ordered.