Skinner v. Boston & Maine Railroad

200 Mass. 422 | Mass. | 1909

Braley, J.

This is an action of tort brought by the widow under R. L. c. 106, §§ 71, 73, to recover for the death of her husband, an employee of the defendant, who was struck and instantly killed by a locomotive as he was crossing the tracks at one of its stations in the performance of his duties as a mail carrier. By the statute, unless the decedent if he had survived could have maintained an action, the plaintiff cannot prevail. Upon recourse to the evidence it appears that he was employed by the defendant to carry mails between the postoffice and the trains, and for this purpose used a small, two wheeled handcart provided by the railroad, which he pushed before him as he walked. On the day of the accident, after having delivered the mail to the inward bound train, he waited on the platform until it had partly passed over the plank crossing, when he left the platform and started to pass over this crossing to return to the postoffice for the mail which was to go on the outward bound train, and, while he was on the outward bound track, over which he had nearly passed, the locomotive struck him. If a finding would have been warranted, that in the performance of his duties he was expected to cross the tracks and that when killed he was about his work in the usual way, all the witnesses who saw and described the accident agreed, that when struck by the train he was walking, pushing the cart in front, with his head slightly bent forward, looking down and straight ahead. According to common experience, to walk or stand on a railroad track over which, as the decedent knew, notwithstanding his brief experience as an employee,^* trains were very often passing, in itself was attended with great danger. But, even if, intent on his work, he may have followed passengers who preceded him, when, without looking to see whether a train was coming or giving any attention to his surroundings, he started across, his conduct must be held to have been so careless as to amount to contributory negligence which bars any recovery. Barstow v. Old Colony Railroad, 143 Mass. 535. Cannon v. New York, New Haven, & Hartford Railroad, 194 Mass. 177. Winslow v. Boston & Maine Railroad, 165 Mass. 269.

JExceptions overruled.

* The plaintiff’s intestate entered the defendant’s employ on October 29, and was killed on November 2, 1906,