159 Mass. 536 | Mass. | 1893
This case bears some resemblance to Davis v. New York, New Haven, & Hartford Railroad, ante, 532. The plaintiff’s intestate was killed while engaged in a stooping position, in cleaning under a switch bar in the defendant’s yard, the work being of a kind which naturally withdrew attention from approaching trains. The difference is that in this case there is no sufficient evidence that the defendant had given the deceased the right to rely upon being warned when a train or car approached, in such a way as to excuse him from using his eyes. The strongest testimony bearing upon the matter is that of the section foreman. He says that he generally looked out for the men the best way he could and warned them, but that even if the men were together they had to look out for themselves, and of course that they had to look out for themselves when they were in different parts of the yard. At the time of the accident the men were separated, and the deceased must be taken to have known that he was not relieved from the necessity of keeping watch for himself. If so, he was not free from negligence in failing to do so. The case is distinguished in like manner from Maher v. Boston & Albany Railroad, 158 Mass. 36, where the deceased had a right to rely on being warned by a tell-tale of the approach to a bridge, and from Maguire v. Fitchburg Railroad, 146 Mass. 379, 382, where there was an implied assurance that the use of the track was suspended. See also Lake Shore & Michigan Southern Railway v. Lavalley, 36 Ohio St. 221; Vose v. Lancashire & Yorkshire Railway, 2 H. & N. 728.
What we have said with reference to a warning from the foreman applies also, in our opinion, to a warning from the car. Although we fear that on this point we are at variance with
Judgment on the verdict.