| Mass. | May 20, 1891
This action was brought under the employers’ liability act, (St. 1887, c. 270,) and by virtue of the first section it was necessary for the plaintiff to prove that the deceased himself was in the exercise of due care and diligence at the time he was killed. But the evidence introduced was at least as consistent with carelessness on his part as with his exercise of due care; indeed, it would seem to be more so. Trains and engines were very frequent. There was no legal duty to sound the whistle or ring the bell at this point. The employment of the deceased was such as necessarily required him to look out very carefully for coming engines and trains. There is nothing to show what pains he took to ascertain if an engine was coming. He was upon the track when the engine came along, and the rest is left for conjecture. There is no evidence that he took such precautions as due care and diligence required of him. The burden of proof which rested on the plaintiff upon this point was not sustained. Hinckley v. Cape Cod Railroad, 120 Mass. 257" date_filed="1876-05-22" court="Mass." case_name="Hinckley v. Cape Cod Railroad">120 Mass. 257, 262. Crafts v. Boston, 109 Mass. 519" date_filed="1872-03-15" court="Mass." case_name="Crafts v. City of Boston">109 Mass. 519. Griffin v. Boston & Albany Railroad, 148 Mass. 143" date_filed="1889-01-01" court="Mass." case_name="Griffin v. Boston & Albany Railroad">148 Mass. 143, 145.
Since, under the limitation of the right to bring an action to one year from the occurrence of the accident, no new action can be brought for the cause sued upon, (St. 1887, c. 270, § 3,) we have entertained the question and determined it upon its merits, although it was not strictly regular to report the case to this court upon a nonsuit. Pub. Sts. c. 153, § 6. Terry v. Brightman, 129 Mass. 535" date_filed="1880-10-28" court="Mass." case_name="Terry v. Brightman">129 Mass. 535.
Nonsuit to stand.