184 Mass. 89 | Mass. | 1903
The plaintiff’s husband was an engineer in the service of the defendant company, and was killed in a collision between his train, which was an express freight bound to Boston, and a construction train near what is called the Dedham road from two to two and a half miles towards Boston from Canton Junction. This is an action by the plaintiff as administratrix of her husband’s estate to recover damages under St. 1887, c. 270, and acts in amendment thereof, for his injuries and death. The declaration is in five counts, but the grounds of recovery chiefly relied on, are, that there was evidence tending to show negligence on the part of the defendant and of the servants in charge of the construction train and of the locomotive attached to it, in suffering the train and the locomotive to be where they were at the time of the accident, without warning or notifying the plaintiff’s intestate of its presence, and also that there was evidence tending to show negligence on the part of one Morse, who had charge of signal flags and torpedoes, in not going back from the construction train as far as required by the rules to warn approaching trains of the danger. During the trial some evidence was offered by the plaintiff which was excluded, and the plaintiff excepted. At the conclusion of the plaintiff’s evidence the judge directed a verdict for the defendant. The case is here on exceptions by the plaintiff to the exclusion of the evidence that was offered, and to the ruling directing a verdict for the defendant.
The exceptions to the exclusion of evidence have not been argued and we therefore treat them as waived. We think that the ruling directing a verdict for the defendant was right and that the evidence showed that the plaintiff was not in the exercise of due care.
The train to which the locomotive of the deceased was attached consisted of forty-four loaded cars and a caboose. Some of the cars at least, if not all, were heavily loaded. The locomotive was also a heavy locomotive. The grade from Canton Junction to the place of collision was a heavy, down grade, and the evidence showed that it was not customary to use steam going down it, unless the train had stopped at Canton Junction which the train of the deceased did not do on the morning of the accident. The train was three hours late and there was un
Exceptions overruled.