Dewhirst v. Boston & Maine Railroad

The plaintiff contends that the accident to his intestate was due to the negligence of the engineer in stopping the train before he had received the motion to do so. The only evidence bearing on the matter comes from the man who stood on the car next to the engine for the purpose of repeating to the engineer, who guided his action thereby, signals given from the rear end of the train bj^ the plaintiff’s intestate and another man for that purpose. He testified' in part as follows : “ Q. At the time that you gave the down motion, [that is, the stop motion,] had the steam been shut off? A. Well, I felt a jar. I think it was shut off. — Q. What makes you think it was shut off? A. Because it jarred me just as I was giving the motion to stop before I gave it. —Q. What jarred you ? A. The stopping *403of the train like.” There was no direct evidence that the steam was shut off, or if it had been that it would have resulted in such a motion as the witness attempted to describe. Neither the engineer, nor the fireman, nor the conductor who was in the cab of the engine, was called as a witness. But if we assume that the engineer had begun to stop the train before the motion was given, the evidence fails to connect the accident to the plaintiff's intestate with this conduct on the part of the engineer. The same witness who testified to what has already been quoted also testified, on cross-examination, that he got the stop motion from the plaintiff’s intestate after he had. felt the jostling, and that it was given at about the same time as the other man gave it who stood on top of the car which was being kicked on to the side track. Whether, therefore, the accident was due to the action of the engineer, or to some other cause, was a matter of conjecture, and the plaintiff failed to sustain the burden of showing that it came from the negligence of the engineer, even if we assume that he had begun to stop the train before he received the motion to do so. Exceptions overruled.