Hinckley v. Cape Code Railroad Co.

• Citation: 120 Mass. 257
• Parties: Seth Hinckley, administrator, v. Cape Cod Railroad Company
• Decision Date: 22 May 1876
• Court: United States State Supreme Judicial Court of Massachusetts

120 Mass. 257

Seth Hinckley, administrator, v. Cape Cod Railroad Company

Supreme Court of Massachusetts

May 22, 1876

Argued October 26, 1875; October 28, 1873. [Syllabus Material] [Syllabus Material]

Bristol. Tort for an injury occasioned to Philip Hinckley, the plaintiff's intestate, by being struck by a car of the defendant.

Trial in this court, before Colt, J., who, at the close of the plaintiff's evidence, reported the case to the full court upon the question whether it would be competent for the jury to find that the intestate was in the exercise of due care. If so, the case was to stand for trial; otherwise, the plaintiff to become nonsuit.

Annexed to the report was a plan, a copy of so much of which as is material appears in the margin. ^[*]

The evidence reported was in substance as follows:

Seth Hinckley testified: "Philip Hinckley, my father, was sixty-eight years old, and was a watchman for the Boston & Sandwich Glass Co. I have lived in Sandwich nearly thirty years, and was born there; am familiar with the premises round the depot there ever since it was built, ten to twenty years ago. For many years the Church Street and East Jarvis Street travel has turned round Murphy's Corner; passed a few paces between the fence and the nearest track by a worn pathway, and then crossed over diagonally, varying a little to the depot platform, crossing the sidings; never knew much change in travel before the accident, except that occasionally people would cross Jarvis Street planking. Most of Sandwich lies west of the track. Father went every day to the passenger trains, had business with the passenger trains, but had no business with the freight trains. From Murphy's Corner we can see north up the track one hundred and fifty feet; a slight curve comes there; can't see to Town Neck, except by going to the track; when there, you can see up to Town Neck, which is half a mile off northerly. There is quite a village east of the railroad, which uses Jarvis Street and Church Street thus; also, five hundred people there employed in the Glass Works; there was never any fence across the regular path of which I have spoken."

James Parks testified: "I live on the north side of Jarvis Street, thirty-five feet from the railroad, and knew Philip Hinckley forty-two years. I was with him fifteen minutes before the event at Hobson's store. I saw him and his daughter go by my house to the railroad; she was about two rods ahead of him then; people that go by my place to go to the platform go in the same direction Mr. Hinckley did; all that part of the town go that way. I next saw him dead. I was in my house, and heard no bell, and couldn't see train; heard rumbling. Have known the premises since the railroad was built; the travel goes there between the switches. When I got there, I saw one of his eyes open, and that he was alive. No flagman was ever at that crossing. I can't say whether the up passenger train from Barnstable was in or not. The siding north of Keenan's is within a few feet of the Cape Cod Glass Works. It was a pretty cold day, and the ground frozen and slippery. It rained the night before. It was the day after Thanksgiving. The wind was northwest. When Mr. Hinckley passed my house, he was heading straight for the railroad. When he passed my house, I got up and looked to see him run, him and his daughter. The freight train is due about 3 o'clock, but is not regular, and arrives from 2 to 5."

Clarissa Chase testified: "Philip Hinckley was my father; I was going to Boston on the day of his death, on the 3 o'clock train. I had my child with me, seven months old, and father was accompanying me to see me safe off in the train. It was the day after Thanksgiving, and very slippery, some snow, and blowing very hard. As I was going to the station, baby's hat blew off near Murphy's Corner; I turned to pick it up, and turned round again and saw my father killed; didn't see the car; gave my baby to a man and went to him; I heard no bell, nor whistle, and saw no engine or cars, just before my child's cap blew off, or at any time that afternoon. It was about 3 o'clock. People going down Jarvis Street to the platform go just where my father did; you come down Jarvis Street and go across between the switches across the same place where my father was killed. My little girl aged twelve was with me. I saw father try to rise up and then fall over on his side, and try to pick up his hat with his left hand. There was no flagman. My father told me when we started that the train had come. I had not crossed any track when he was killed; he had got ahead of me, passed me when I was picking up baby's hat. The car must have gone by me, but I did not see it. Father had not left me at the depot and turned to go home."

Thomas Montague testified: "I have lived in Sandwich more than twenty years. I was in the base-ball club-room and heard a whistle; I thought that it was the 3 o'clock train that was coming. I ran out and saw Basset throw up his hands, and saw Hinckley lying; the car was then half way between the switch and depot. He tried to speak, but I couldn't make out the words. When I heard the whistle I thought it was the 3 o'clock train; there is no way in which a carriage can come to the depot platform without crossing a track. The base-ball club-room is four or five buildings from the main track on the north side of Jarvis Street."

John B. Basset testified: "Have lived in Sandwich twenty years. I saw Philip Hinckley in Hobson's store; I came out of it and started to go to the depot, to see the 3 o'clock train from the Cape. I went through Jarvis Street; went between the tracks. The engine went down on the main track south; I saw the box car coming; saw Hinckley crossing the track; called to him, but the wind was blowing, and I don't think he heard me. I stooped down and saw the car go over him. I was fifteen or twenty feet from him; wind northwest, pretty hard, blowing down the railroad. Hobson's store is one hundred yards from Keenan's. I stopped five minutes at Murphy's Corner, when the engine passed, I can't say if with or without cars; I saw the car coming; a clear view up to Town Neck; Mr. Hinckley was ahead of Mrs. Chase, and when he started to cross the tracks I was between the siding and the main track that runs into the depot; the car was between us; he was between the switches, north of the second switch from Jarvis Street; when it struck him it threw him forward. I heard the brakeman in the car hallooing, and turned round; saw the car hit him in the back."

Thomas Bower testified: "I was on the west side of the railroad, between Jarvis Street and the platform; saw Mr. Hinckley as he was crossing; the car was going very fast, and the wind fresh from the north; the brakeman was on the north end of the car; I don't remember any engine passing down; I was watching the car coming in; it was coming quite fast; it went into the depot without stopping; no engine was with it."

There was other evidence tending to show that no bell or whistle was heard, and that Philip Hinckley lived some minutes after he was struck by the car.

The case was argued in October, 1873, and reargued in October, 1875.

Plaintiff not maintained his action.

T. M. Stetson, for the plaintiff.

G. Marston & C. W. Clifford, for the defendant.

Devens, J. Lord, J., absent.

OPINION

Devens, J.

Upon the evidence it might fairly have been found by the jury that the defendant was guilty of negligence in permitting its car by collision with which the injury was occasioned, to traverse the track at a high rate of speed and without proper warning, but mere proof that the negligence of the defendant was a cause adequate to have produced the injury will not enable a plaintiff to recover, as it does not necessarily give rise to the inference of due care upon his part, proof of which is essential to his case. It may still be that he was not exercising it, and the injury thus have resulted from the concurring negligence of both parties. Murphy v. Deane, 101 Mass. 455, 463. While one may, in the exercise of reasonable care, rely to a certain extent upon the performance of his duty by the other, no negligence of such other can be so dominant as to relieve him from his own obligation, and, if a performance of such obligation might have prevented the injury, his failure so to perform must be considered as contributing...