BLUTE v. NEW YORK, N.H. H. RAILROAD

Negligence. Railroad. If a track man in the employ of a railroad company, who is one of a gang of six men in charge of a foreman, when he is working alone digging out the snow on a track at a place where trains are likely to come at any time, turns his back upon the station, about half a mile away on a straight track, from which all trains come upon that track, and fails to look in that direction for at least three or four minutes, and then is struck by a train, he is not in the exercise of due care, and it is no excuse for his negligence that he was not warned of the approach of the train by the foreman who was directing the work of the other men of the gang at a point three hundred and fifty feet farther away than the plaintiff was from any train approaching on that track.

HAMMOND, J.

It would serve no useful purpose to rehearse in detail the evidence in this case. There was no evidence of the due care of the plaintiff. It is plain that he did not himself keep proper watch for the approach of the train by which he was struck. He attempts however to excuse himself upon the ground that he relied upon McAvoy the foreman to warn him. But this is unavailing. The plaintiff testified that for "probably twenty-five minutes" he had been at work at the place of the accident, and that during the whole of that time he had been separated from the rest of the gang who were at work under the immediate supervision of McAvoy at a place shown by the plan to be at least three hundred and fifty feet from the plaintiff. The plaintiff was at work upon the inward track and the trains running upon that track approached him from the direction of Roxbury, while McAvoy was upon the opposite side of him. Thus McAvoy was three hundred and fifty feet farther away from any inward approaching train than the plaintiff was, and was in charge of a gang of men then at work, or, to use the language of the plaintiff, "was seeing that they were doing their work." Under these circumstances it is plain that McAvoy could not properly be relied upon by the plaintiff to give warning of approaching trains, and that the situation was known to the plaintiff. It was the duty of the plaintiff under the circumstances to look out for himself and in doing so he could not rely upon any expected warning by McAvoy. The case must stand with Lynch v. Boston Albany Railroad, 159 Mass. 536, and Vecchioni v. New York Central Hudson River Railroad, 191 Mass. 9, and other similar cases.

Exceptions overruled.