212 Mass. 96 | Mass. | 1912
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
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,
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.