French v. Taunton Branch Railroad

• Decision Date: 21 January 1875
• Citation: 116 Mass. 537
• Parties: Mary B. French v. Taunton Branch Railroad
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 537

Mary B. French v. Taunton Branch Railroad

Supreme Court of Massachusetts

January 21, 1875

Argued October 28, 1874 [Syllabus Material]

Bristol. Tort to recover for personal injuries sustained by the plaintiff and for injury to the plaintiff's horse alleged to have been caused by the negligence of the defendant in the management of its train and by its failure to maintain a suitable flagman or signal to give warning of the approach of trains at a point upon a highway in Taunton which is crossed at grade by the road of the defendant. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows:

The plaintiff testified: "I am sixty-seven years of age. The accident happened at about four in the afternoon. When I came to the bend in the road, several rods from the crossing, I saw the rear car of a freight train passing down over the crossing. I had a light, open carriage, and an old horse that I had driven for ten years. I was going four or five miles an hour. I was looking ahead, and went ahead without stopping there was no obstruction in the way. When my horse stepped on to the track, I heard a man shout and looked round. I saw a car near me coming down the railroad; man on it. That's all I know. It was coming quite fast. I was unconscious for some time after. The next I knew I was lying in the road with blood on my face, and severe pain in my head. I was holding the reins. My grandson was with me; he is thirteen years old. There was no warning in the highway; if there had been a bird there, I should have seen it; no person or flag visible; if there had been, I should have seen it."

Cross-examined: "I looked straight ahead all the time from the bend in the road till my horse got on to the crossing; I did not look up or down the track; I did not turn my head or eyes to the right or the left. I suppose if I had looked up the track just before I reached it, I might have seen the car; the reason why I did not was because I never knew one train to follow another so closely; that was the only reason; I presumed there would be nothing coming so close. There was nothing to prevent my looking up the track just before I reached it, that I know of."

Everett C. Pierce, the grandson of the plaintiff, testified as follows: "I am thirteen years old; was in the carriage with grandmother; coming round the bend of the road, I saw the rear end of the train, the last part of one car. The horse stepped on to the track, when I heard a man halloo, and the car was right on us. I found myself on the car, a flat car, loaded with scrap-iron; the car stopped; I saw my grandmother on the end of the car; saw no one in the road, no flag."

Cross-examined: "I did not look up or down the track; looked straight ahead. After I saw the last car of the train pass the crossing, I asked my grandmother if it was safe to cross, and the said 'Yes.' That was all either of us said."

The car struck the carriage and threw the plaintiff and her grandson on to the car with great violence, injuring the plaintiff severely. The car was a portion of a freight train, which before reaching the crossing had been divided into three parts, for the purpose of making a "running switch," or of throwing the car, which was the middle of the three parts, on to a turn-out below the crossing by its own momentum. At a distance of forty-six feet from the centre of the track, a person could see forty-six feet up the track in the direction in which the car was approaching, and at a point thirty feet from the track there was, at the time of the accident, a clear and uninterrupted view up the track for a distance of over half a mile.

There was evidence tending to show that the defendant corporation had cut away some bushes from the angle made by the railroad and the highway, and which was between the plaintiff and the approaching car, at some time between the accident and the trial....