Selena Tinney, Administratrix, etc., Appellant, v. The Boston and Albany Railroad Company, Respondent

Selena Tinney, Administratrix, etc., Appellant, v. The Boston and Albany Railroad Company, Respondent. (Argued February 3, 1873; decided February 11, 1873.) This was an action to recover damages for the death of David J. Tinney, plaintiff’s intestate, alleged to have been occasioned by the negligence of defendant. Tinney was at the time of his death in the employ of defendant as'fireman. His engine was engaged in hauling freight cars into the company’s yard. The engine had performed one trip and the switches were right. It went for more cars, and, returning in a few minutes, ran off the track in consequence of one switch having been misplaced during its absence, and Tinney was killed. Plaintiff claimed to recover upon the ground that the switchman employed was incompetent, and that not enough were employed to attend the switches. The regular switchman employed was absent, and a man employed about the round-house had taken his place. It did not appear that defendant’s agent knew of this change. He had acted as switchman before, and the. evidence did not show he was not competent. He did not know of the displacement of the switch. The evidence failed to show that there were not enough switchmen employed to transact defendant’s business with safety. It appeared that the brakemen were required to attend to the switches for making up trains upon the yard and placing cars upon side tracks. Plaintiff was nonsuited., Held (Chhboh, Oh. J., and Peokham,' J., dissenting), no error; that the evidence failed to show any negligence upon the part of defendant or its agents having charge of the employment of its servants. Matthew Hale for the appellant. George W. Miller for the respondent. [MAJORITY — Geoveb, J.,.] Geoveb, J.,. reads for affirmance. All concur except Chubch, Oh. J., and Peokham, J., dis senting. Judgment affirmed.