Peaslee v. Fitchburg Railroad

152 Mass. 155 | Mass. | 1890

W. Allen, J.

The plaintiff contends that the death of his intestate was caused by-the negligence of his fellow servant, Taylor, an engineer in charge of a locomotive engine; and that there was evidence that Taylor was an incompetent person for the service in which he was engaged, and that the defendant was negligent in employing him in that service, and also that there was evidence that the defendant was negligent in not providing proper rules and instructions for the government of Taylor’s conduct in the performance of the duty in which he was engaged.

Taylor’s immediate duty, in reference to which his capacity and the rules given to govern his conduct are to be judged, was to keep his engine stationary until ordered to move it, and then to move it as ordered. His engine was so situated in reference to an engine on another track, that, by moving it ahead a short distance, it would be .brought in contact with the other engine. Taylor heard part of an oral order intended for the engineer on the other engine, and, supposing it to be an order for himself to go ahead, started his engine ahead until it came in collision with the other engine, and caused the death of the plaintiff’s intestate. There was no evidence that Taylor was not a proper person to be in charge of an engine, except his conduct at the time of the occurrence in question. There was evidence that he had been in the employment of the defendant for about ten years as fireman upon an engine, and for eight months preceding the accident as engineer. It is argued that Taylor was a witness before the jury, and that they had a right to determine from his appearance that he was so manifestly incompetent that the defendant was negligent in employing him as engineer. There is nothing in the exceptions to show that there was anything in the appearance of the witness that would justify such an inference ; and it cannot be presumed that there was. Keith v. New Haven & Northampton Co. 140 Mass. 175, only decided that, with other evidence of incompetency, the appearance and conduct of the party before the jury might be considered. In the case at bar, the only evidence of incompetency was the single act of negligence, and the exceptions do not show, and it cannot be presumed, that the appearance and conduct of the party before the jury furnished evidence that the defendant knew, or ought to have known, that he was incompetent. The ruling of the court that there was not sufficient evidence will not be set aside unless it appears that there was some evidence.

We think that the evidence in the case was insufficient to prove that the defendant was negligent in employing Taylor in the service in which he was employed.

The plaintiff contends that the accident was caused by an imperfect system of signalling in use by the defendant. So far as concerns- this case, the signals are confined to those affecting the starting of the two locomotives, the one attached to the freight train ready to start, of which the plaintiff’s intestate was fireman, and the switching engine, of which Taylor was engineer ; and the only signal called for or used was that to “ go ahead.” The night signal to “ go ahead,” according to the rules of the defendant, was a particular motion of a lighted lantern. That signal was not given, and no question as to its sufficiency arises. The plaintiff contends that the defendant was negligent in not providing also a system of voice signals or oral orders for starting trains and engines. We need not consider whether the absence of rules providing for such orders was any evidence of negligence in the defendant, because such an order was in fact given, and the accident arose from the fact that Taylor did not understand it. The evidence was that the conductor of the freight train called to his engineer to go ahead, that Taylor heard the words “go ahead,” and some other words which he did not understand, and, without waiting to find what they were, applied the order to himself, and started his engine.

The evidence tends to show that the order given by the conductor designated his own train, and that the thing was done in fact which the plaintiff contends should have been done by rule. But it is immaterial what this part of the order was, because- Taylor did not understand it, and it could not have affected his conduct. The signal required by the rules of the defendant was not given, and the signal actually given was not heeded. There is no evidence that the absence of proper rules caused the accident.

Exceptions overruled.