DENISE ROBICHAUD, administratrix, vs. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.

PIERCE, J. This is an action of tort brought on October 10, 1910, under the employers' liability act, St. 1909, c. 514, §§ 127 et seq.

At the close of the plaintiff's case the defendant rested, and the judge at its request directed the jury to find a verdict for the defendant.

A witness for the plaintiff, one Brown, testified on cross-examination that he had observed the intestate while he was performing the duties of flagman; that he appeared to be familiar with the rules of the company; that all the men were furnished with a book of rules; that he saw a book in the intestate's hands, and that it was similar to the books of rules of the defendant in respect to form, color and superscription, but he did not see the book open.

The judge against the objection of the plaintiff permitted the defendant to read to the jury, from a book in appearance similar to the one seen in the intestate's hands, rules numbered 777 and 835, each a rule of importance in the determination of the intestate's due care.

The above facts justified the judge's preliminary ruling and submission to the jury, but whether the intestate had or had not knowledge of the specific rules as read remained for the jury's determination. They might or might not infer such knowledge; indeed they might disbelieve the statement of the witness that the intestate appeared to have knowledge of the rules, or had in his hands a book of rules. It follows that rules 777 and 835 should be

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disregarded in considering whether the judge was right in directing a verdict for the defendant.

The intestate was a man of large experience in railroading. He had worked in this division and in this yard, at Mansfield, for seven or eight years. He had been a flagman on this nightly "run" for three months. At times he had been an emergency conductor and had taken trains in and out of the Mansfield yard.

On the night of the intestate's death a freight train of twenty-four cars had come from East Providence to Mansfield. It arrived somewhere between three and four o'clock in the morning. It backed from the main track, over side track No. 3, to side track No. 5, leaving there the caboose and three cars. The conductor himself "cut" the caboose and three cars, and notified the intestate that they could pick up the cars on track 5; then the intestate rode the three cars to their destination on the extension of track 3, and on arriving there gave the conductor the signal that all was right, that is to say, their position would not interfere with any movement on the other track. The engine then pulled the remaining twenty cars back upon track 3, and stood there.

The conductor meanwhile went to the office to get his way bills and to ascertain what cars he was to take out. At the time of the accident fourteen cars already had been placed on track 5. The yard brakeman brought to track 5 from track 7 nine cars, pulled the pin on the car next to the engine, the engine gave a little push, and the cars ran by their own momentum on a grade down on those already there. Their impact pushed the cars about five feet.

The yard brakeman rode the cars. He stood on the first one coming down, which was a flat coal car. He had a lantern on the footboard on the outside of the car, and the lantern was visible to any one down the track. He saw nobody and did not know of the intestate's being on top, between or under the cars.

The intestate was found, dead, beneath the second car of the fourteen cars farthest away from the cars as they came down. No one saw him from the time the conductor left him on track 3 until he was found.

There is no testimony in the record to show where the intestate was at the time of the contact of the nine cars with the fourteen cars. It reasonably may be argued that his injury was due to the force of the impact, but it is at least doubtful if it be proven.

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There is no testimony to show where he was at the time of the accident other than that he was in a position to fall or be dragged beneath the cars. He might have been setting or unsetting the brake on the top of the car. He might have been on top of the car for some other purpose and have fallen between the cars. He might have been under or between the cars.

It is argued that at the moment of the coming together of the cars he was engaged in coupling the air hose. It appears that the trainmen of the train which was to take out the assembled cars had no part in its making up. As soon as the train was fully made up, that is, as soon as all the cars were collected on one track and the engine was attached, perhaps sometimes before the engine actually was connected, it was the duty of the trainmen to couple the air hose between the several cars. There was no evidence that it was the practice to air-couple the cars before all were assembled. It is not reasonable to believe that a trainman, with the knowledge and experience of the intestate, was occupied in air-coupling cars while the yard men were engaged in making up the train; or to believe that he thought the fourteen cars were all the cars which were to constitute the train.

Whether the intestate was engaged in the performance of his duties or was in the exercise of due care is a matter of conjecture and speculation. Cox v. South Shore & Boston Street Railway, 182 Mass. 497.

Exceptions overruled.

J. F. Cavanagh, for the plaintiff.

J. L. Hall, for the defendant, was not called upon.