Sullivan v. Fitchburg Railroad

Holmes, J. The bill of exceptions states that it appeared in evidence that it was a part of the duty of trackmen to look out for wild trains, and that they had no other means of protection except to take care of themselves. We do not regard this statement as qualified by the defendant’s rule that wild trains “ must run cautiously around curves and over grade crossings, looking out for trackmen,” but accept the interpretation put upon the rule by the defendant’s counsel, that the caution has reference to the safety of the train, not of the trackmen. In this case the other persons on the hand-car escaped, and why the deceased failed to do so does not appear. In the opinion of a majority of the court we cannot say that he was subjected to any danger beyond that of which he took the risk. Shepard v. Boston & Maine Railroad, 158 Mass. 174. Lynch v. Boston & Albany Railroad, 159 Mass. 536. Exceptions overruled.