120 Mass. 257 (Mass. 1876), Hinckley v. Cape Code Railroad Co.
|Citation:||120 Mass. 257|
|Opinion Judge:||Devens, J.|
|Party Name:||Seth Hinckley, administrator, v. Cape Cod Railroad Company|
|Attorney:||T. M. Stetson, for the plaintiff. G. Marston & C. W. Clifford, for the defendant.|
|Judge Panel:||Devens, J. Lord, J., absent.|
|Case Date:||May 22, 1876|
|Court:||Supreme Judicial Court of Massachusetts|
Argued October 26, 1875; October 28, 1873.
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...
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