Murphy v. Boston & Albany Railroad

The plaintiff was bound to show that the death of his intestate was due to the negligence of the defendant, and that his intestate was in the exercise of due care. In both respects the evidence seems to us to have left the cause and manner of death to conjecture. When last seen alive Murphy was standing on top of a car where his duty required him to be, stooping as he went under the iron bridge. He was discovered after the train had passed the wooden bridge, lying unconscious on top of the car, with a soft spot about the size of the hand, on the back of his head. His cap and a pipe were found under the wooden bridge. The brake of which he had charge was not set. The testimony showed that it was not usual to begin to set the brakes till after the wooden bridge was passed. There was nothing pertaining to his duties which appears especially to have engrossed his attention. The probability is, and the jury would have been justified in so finding, that he *67had passed the iron bridge in safety, and that he was struck by the wooden bridge. But what he was doing at the moment, or whether the gap in the tell-tales contributed to the accident, is entirely a matter of surmise. Whether he rose from the stooping posture after passing the iron bridge and before reaching the tell-tales which were midway between the two bridges, or whether he remained stooping till after he had passed under them and then rose, can only be conjectured. If he was standing when he passed under them, it seems hardly possible that he should not have been struck by them notwithstanding the gap, or should not have seen them. The bridges were only four hundred feet apart, and at the speed at which the train was moving — fifteen miles an hour — it would pass over that distance in eighteen or twenty seconds. Due care on the part of the plaintiff’s intestate would seem to have required that the stooping posture which he assumed in order to pass under the iron bridge should have been kept till he had passed the wooden bridge. He had run between Worcester and Springfield several months, and must be taken to have known the situation of the bridges ; and their proximity to each other was such that the approach of the train to one must necessarily have given him warning of the nearness of the other. We think that the plaintiff has failed to sustain the burden as to due care on the part of his intestate, or negligence on the part of the defendant. Williams v. Delaware, Lackawanna, & Western Railroad, 116 N. Y. 628. Corcoran v. Boston & Albany Railroad, 133 Mass. 507. Riley v. Connecticut River Railroad, 135 Mass. 292. Tyndale v. Old Colony Railroad, 156 Mass. 503. Chandler v. New York, New Haven, & Hartford Railroad, 159 Mass. 589. Geyette v. Fitchburg Railroad, 162 Mass. 549. Livermore v. Fitchburg Railroad, 163 Mass. 132.

Fxceptions overruled.