Chisholm v. Old Colony Railroad

Allen, J. There was nothing to show any negligence or carelessness on the part of the defendant corporation, or any general unfitness of its servants or agents. It was therefore incumbent on the plaintiff to prove gross negligence or carelessness on the part of the engineer or fireman. Pub. Sts. c. 112, § 212. There was no evidence which would sustain this burden. The alleged gross negligence consists in not stopping the train sooner. Merely seeing one or more men on a railroad track at a distance, unless they appear to be helpless of disabled, does not ordinarily make it the duty of an engineer to stop a train. Especially where men are at work upon or by the side of a railroad track, it may ordinarily be expected that they will look out for the trains. In this case the end of the pole fell across, or partly across the track, but it does not appear how soon the engineer was aware that the end of the pole was upon the track. The fireman, though he saw the pole in the act of falling, does not testify that he knew it reached so far as to lie upon the track. According to the fireman’s testimony the engineer was in his seat, looking ahead. Some three or four men were at the small or top end of the pole trying to get it off the track, and apparently would have succeeded in a moment or two more. The train approached, the whistle sounded, others of the gang of workmen shouted to warn those who were at the end of the pole, and all but McKiever got out of the way. Before reaching the place the engineer had put on the brakes and “given the engine sand.” He was not called by the plaintiff as a witness. Upon the evidence, it is at best merely conjectural whether he saw or could have seen anything making it grossly negligent not to apply the brakes sooner. Without going so far as to attribute negligence to McKiever in remaining upon the track, there is no evidence to warrant a jury in finding the engineer or fireman guilty of gross negligence towards him in failing to stop the train sooner. Judgment on the verdict.