193 Mass. 249 | Mass. | 1906
This is an action of tort by the plaintiff as the widow of one William E. Meadowcroft who was instantly killed while at work in the defendant’s yard at Fall River, to recover damages under the employers’ liability act for the death of her husband. There was a verdict for the, plaintiff and the case is here on exceptions by the defendant to the refusal of the judge to rule that the deceased was not in the exercise of due care, and to direct a verdict for the defendant.
We think that the ruling was right. The deceased was a car checker, whose duty it was to take the numbers of the cars on freight trains. The accident happened after dark on November 23,1904. The deceased, with a lantern on his arm and a pad and
A railroad yard with numerous tracks, and with engines and trains and cars passing back and forth and from one track to another, is a place of danger, and the deceased must be held to have assumed the risks incident to his employment in such a place. But if it was customary to give warning of the approach of cars that were kicked down on a track where he or other checkers were at work, he had a right to rely upon such custom and to govern himself accordingly; and it was for the jury to say to what extent cars were kicked down without such warning and how far, if at all, such conduct affected the custom and the right of the deceased to rely upon it. Upon the evidence before them we think that the jury properly could find, as they must have found, that the deceased was in the exercise of due care, and that the accident was due to negligence on the part of the conductor in sending down the cars without a brakeman or light upon them to warn the checkers. Maguire v. Fitchburg Railroad, 146 Mass. 379. Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532. Maher v. Boston & Albany Railroad, 158 Mass. 36. Steffe v. Old Colony Railroad, 156 Mass. 262. Carroll v. New York, New Haven, & Hartford Railroad, 182 Mass. 237. In the case of Vecchioni v. New York Central &
Exceptions overruled.