Tyler v. New York & N. E. R. Co.

• Decision Date: 10 May 1884
• Citation: 137 Mass. 238
• Parties: Frank H. Tyler v. New York and New England Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 238

Frank H. Tyler v. New York and New England Railroad Company

Supreme Court of Massachusetts

May 10, 1884

[Syllabus Material]

Norfolk. Tort for personal injuries occasioned to the plaintiff by the negligence of the defendant. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:

There was evidence tending to show the following facts: The plaintiff was driving his father's horse and wagon on Bridge Street, in Hyde Park, on March 18, 1882, when it came into collision with a train of the defendant going towards Boston from Readville, where Bridge Street crosses the tracks of the defendant's railroad. The wagon was an ordinary open market wagon, and in the wagon were the plaintiff, a boy fourteen years and three months old, who had been used to horses, and driving horses all his life, another boy whom he had just taken into the wagon, some empty baskets, and about thirty-two pounds of meat.

The public had been in the habit of crossing the track at Bridge Street for over twenty years, during which time it had been kept in repair by the defendant and its predecessor in title. Bridge Street is about two hundred feet long from Water Street to the tracks of the defendant corporation, and, at one hundred feet from the corner of Bridge Street and Water Street, it slopes downward through a cut, until it enters on the tracks of the railroad at the foot of the hill. The grade of Bridge Street, for the first fifty feet from the track, is twelve feet in a hundred, and, for the next fifty feet, seven feet in a hundred.

The foot of the slope along the railroad is ten feet, and the top of the slope fifteen feet, from the southerly rail of the inward track. The bank on the Readville side of Bridge Street increases from the height of seven and three quarters feet at the corner of Bridge Street and the location of the railroad, to fifteen and a half feet, at two hundred and twenty feet from the centre of Bridge Street. On the top of the embankment for the first ninety feet was an unpainted picket fence about five feet high, and beyond that point was a tight board fence for about two hundred feet further. There was a signboard erected over the crossing in accordance with law, in plain view down Bridge Street, from the corner of Bridge Street and Water Street.

A person could see, through the picket fence along the top of the bank, the smoke-stack of an engine approaching from the direction of Readville, when the smoke-stack was two hundred and thirteen feet distant from the centre of Bridge Street if he was standing in Bridge Street seventy-five feet distant from the tracks; and three hundred and forty-two feet, if he was fifty feet distant therefrom; and, at a distance of from fifteen to thirty-five feet, a clear view of the track toward Readville could be had. A train could be heard by a person in Bridge Street, before it came in sight through the fence.

The plaintiff testified that he drove into Bridge Street toward the tracks of the defendant's railroad on an easy trot that, when he came to the crest of the hill, about one hundred feet from the tracks, he pulled up, and afterwards drove the horse at a rate half-way between a trot and a walk; that the other boy told him he would show him where he lived, and, as they came in view of this other boy's home, the latter showed it to him; that this house lay on the Boston side of Bridge Street, and was hidden from view by an intervening house until the wagon was over the crest of the hill; that, when the house came in view, he looked at it, and then turned to his horse. He did not testify, nor did anybody else, that he looked for, listened for, or thought of, the train, or had the crossing in mind, except as might be inferred from the following testimony: The plaintiff testified that he "drove into Bridge Street, looked to the right first; there was a board fence; the other boy was at the left; looked towards Boston first; showed me his house as soon as I could see it; I then turned and tended to my horse; the other boy called my attention to the train." From the corner of Bridge Street and Water Street to within some thirty feet of the track, (which is nearer the track than the point where the other boy's house comes in view,) no train can be seen coming from the direction of Boston. The plaintiff also testified that, about a week after the accident, he went to the other boy's house, and asked the latter if the plaintiff stopped to listen for the train; and that there was nothing to prevent his hearing the train, except the rattle of the wagon. The two boys testified that they did not remember hearing the bell on the engine ring. They did not testify that the bell did not ring. The engineer...