Clark v. Boston & Albany Railroad

Endicott, J. The ruling of the presiding judge must be sustained. The plaintiff undertook to perform a duty, which he failed to perform, and, while thus neglecting his duty, he received the alleged injury. As flagman, he was employed to give notice in the usual man ner, by standing on the crossing with his flag, when any cars or engines, whether of the Eastern Railroad Company or of the defendant, were about to cross the street. From the flag-house near the crossing he could see up the track seven hundred feet. [5] On this occasion he saw the smoke of the engine when it first came in sight, and at once went to the crossing with his flag. After the engine had passed he says that he looked but saw nothing; and walked across the track towards the flag-house. While so doing he was struck by the train of cars, which had been detached from the engine, and was following it over the crossing. He simply failed to see what it was his duty to see, and failed to give the notice he was there to give. One of the witnesses, who testified in his behalf,'was at the crossing in a carriage when the engine passed. He saw the plaintiff fold up his flag and walk towards the flag-house. The witness thereupon started his horse to cross the track, but, seeing the cars coming, at once stopped, and saw them strike the plaintiff on the shoulder while crossing the track directly in front of him. This witness also testified that he thought there was a difficulty in the plaintiff’s seeing the cars, as there was a great deal of smoke flying. But the plaintiff stated that, if the smoke or steam from the engine had interfered with his seeing, he should have waited until it passed away. Judgment on the verdict.