134 Mass. 499 (Mass. 1883), Tully v. Fitchburg R. Co.

Citation:134 Mass. 499
Opinion Judge:Colburn, J.
Party Name:Margaret Tully, administratrix, v. Fitchburg Railroad Company
Attorney:W. S. Stearns, for the defendant. G. A. Bruce, (M. F. Farrell with him,) for the plaintiff.
Judge Panel:Colburn, J. Field & W. Allen, JJ., absent.
Case Date:March 06, 1883
Court:Supreme Judicial Court of Massachusetts
 
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Page 499

134 Mass. 499 (Mass. 1883)

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

Page 500

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

Page 501

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...

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