
    William J. Kelly, administrator, vs. Boston and Maine Railroad.
    November 30, 1967.
   The plaintiff is the administrator of the estate of one George F. Kelly, who was killed when struck by a locomotive owned and operated by the defendant. The jury returned a verdict for the plaintiff on the count for death. The case is here on the defendant’s exception to the denial of its motion for a directed verdict on that count. The decedent was employed by The New York, New Haven and Hartford Railroad and at the time of the accident was working as a brakeman within the depot area in Springfield. The locomotive which struck the decedent was moving in reverse through the depot property and the decedent was crossing the track when the accident occurred. The defendant urges us to rule that “the evidence in this case . . . compels the conclusion that as a matter of law plaintiff’s intestate was contributorily negligent in the event that caused his death.” That is the sole issue before us. We decline to so rule. We believe that the evidence was such that the issue of contributory negligence was a factual one for the jury to determine. See Scherer v. Boston Elev. Ry. 238 Mass. 367, 368. See also Lindgren v. Marraffa, 350 Mass. 376, 379.

Edmund M. Sweeney for the defendant.

Matthew J. Ryan, Jr. (Philip J. Tarpey, Jr., with him) for the plaintiff.

Exceptions overruled.  