Tully v. Fitchburg R. Co.

• Decision Date: 06 March 1883
• Citation: 134 Mass. 499
• Parties: Margaret Tully, administratrix, v. Fitchburg Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 499

Margaret Tully, administratrix, v. Fitchburg Railroad Company

Supreme Court of Massachusetts

March 6, 1883

Middlesex. Tort, for personal injuries occasioned to the plaintiff's intestate, John Tully, by being struck by a locomotive engine belonging to the defendant, at a footpath crossing in Somerville. At the trial in the Superior Court before Rockwell, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

Exceptions sustained.

W. S Stearns, for the defendant.

G. A. Bruce, (M. F. Farrell with him,) for the plaintiff.

Colburn J. Field & W. Allen, JJ., absent.

OPINION

Colburn, J.

The first exception of the defendant is to the refusal of the court to rule that there was no sufficient evidence of due care on the part of the plaintiff's intestate.

It was necessary for the plaintiff to show affirmatively that her intestate was in the exercise of due care, or at least that there was nothing in his conduct, either of act or neglect, to which the injury could be attributed, in whole or in part. Chaffee v. Boston & Lowell Railroad, 104 Mass. 108. Mayo v. Boston & Maine Railroad, 104 Mass. 137. Allyn v. Boston & Albany Railroad, 105 Mass. 77. The accident occurred in daylight, a few minutes past six o'clock, p. m., on March 31, 1880. There is no suggestion that there was any fog or mist, or other atmospheric condition, to interfere with the view. The deceased lived near by, and was on foot, having full control over his own movements. The railroad track was straight for the distance of five hundred feet from the crossing where the deceased was struck, in the direction from which the train came, and then curved so slightly as to permit an approaching train to be seen for a much greater distance. It was sixteen feet from the posts set in the fence, through which the deceased passed in going upon the railroad, to the nearest rail upon which the approaching train ran, and about five feet between the rails. The only witness who saw the deceased at the time of the accident testified that he was moving quickly. If we assume that he was walking at the rate of four miles an hour, and that the train was running at the rate of fifty miles an hour, then the train moved twelve and a half feet while he moved a foot. If we suppose that it was eight feet from the point of danger, on one side of the track, to the point beyond danger on the other side, then the train must have been within one hundred feet of the deceased before he incurred danger from it, and probably it was within a less distance.

If the deceased failed to look for an approaching train, he was negligent. In Gaynor v. Old Colony & Newport Railway, 100 Mass. 208, Mr. Justice Colt says, "No one can be said to be in the exercise of due care who places himself upon a railroad track without the assurance from actual observation that there is no approaching train." In Allyn v. Boston & Albany Railroad, ubi supra, Mr. Justice Morton says: "A railroad crossing is a place of danger, and common prudence requires that a traveller on the highway, as he approaches one, should use the precaution of looking to see if a train is approaching. If he fails to do so, the general knowledge and experience of men at once condemn his conduct as careless." If the deceased looked for a train, he must have seen the train approaching, and in such proximity that he could not cross the track without danger, and in that case he was negligent in attempting to cross. There being no conflict of evidence, we are of opinion that the jury should have been instructed that the evidence would not warrant their finding that the plaintiff's intestate was in the exercise of due care. Allyn v. Boston & Albany Railroad, ubi supra.

The next exception of the defendant is to the refusal of the court to rule that there was no sufficient evidence to prove that the defendant was careless or negligent.

The burden was upon the plaintiff to prove the negligence of the defendant. Lane v. Crombie, 12 Pick. 177. Allyn v. Boston & Albany Railroad, ubi supra. The contention of the plaintiff is, that the defendant was negligent in not ringing the bell or sounding the steam-whistle, and that the speed of the train was unreasonable. These are the only points in which it is suggested that the defendant was negligent.

The only evidence upon the subject of the ringing of the bell or sounding of the whistle came from one witness, and was as follows: "I thought I heard the sound of the train coming, and it sounded to me like the puffing of the engine, and about the bell ringing I cannot say whether I heard it or not. I disremember, I was so excited at the time." And in answer to the question, "Did you hear any whistle?" he said, "I don't remember." This was all the evidence; and we are of opinion that it would not warrant the jury in finding that the bell was not rung, or that the steam-whistle was not sounded. If it is urged that, if the bell had been rung or the whistle sounded, the witness would have remembered it, it may be urged, with about the same force, that, if the bell had not been rung nor the whistle sounded, the witness would, under the circumstances, have noticed the omission, and remembered it. No legitimate inference can be drawn from the testimony one way or the other, and the attempt to draw an inference could only end in a mere conjecture.

The only evidence as to the rate of speed of the train was the testimony of one witness, who saw the train stop, that it stopped forty or fifty yards from the crossing; and of another, that he noticed that the train, after it had stopped, was about three hundred yards from the place of the accident. We are of opinion that no inference could be drawn from this evidence that the train passed the crossing at an unreasonable rate of speed. How soon the train would have stopped depended upon the state of the track and the weight of the train, upon the kind of brakes used, whether to be applied by the engineer or by men along the train, and, if the latter, how quickly the men responded to the signal, and upon how promptly, after the accident, the engineer applied the brakes or gave the signal, and how soon he discovered the...