Doyle v. Boston & A.R. Co.
| Decision Date | 02 January 1888 |
| Citation | 14 N.E. 461,145 Mass. 386 |
| Parties | DOYLE v. BOSTON & A. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Horatio E. Swasey and Geo. R. Swasey, for plaintiff.
Gross negligence upon the part of the intestate was an affirmative proposition for the defendant to establish. Being such, the defendant was not entitled to a ruling that the evidence established that proposition. The court may rule that certain evidence does not establish a proposition, but it is the province of the jury to find affirmative and positive conclusions upon the evidence. Copley v. New Haven & N Co., 136 Mass. 6; Com. v. Railroad Corp., 134 Mass. 211; Merrill v. Railroad Co., 139 Mass. 252, 1 N.E. 548; Williams v. Grealy, 112 Mass. 79, 82; McKimble v. Railroad, 139 Mass. 542, 2 N.E. 97. If the defendant's contention is correct, it is a trifle difficult to see what a jury is for. The defendant's claim would also make the court the judge of the credibility of testimony. If it were theoretically proper for the court to rule upon sufficient grounds that the defendant had proved the intestate to have been grossly negligent, the evidence in the case did not justify such a conclusion. The evidence was such that the court would have been compelled to leave the case to a jury, even had it been the plaintiff's duty to prove his intestate in the exercise of due care or ordinary diligence,--a degree of care greater than was imposed upon him by the statute which governs the case. Pub.St. c. 112, § 213. Copley v. New Haven & N. Co., 136 Mass. 6; Bayley v. Railroad Co., 125 Mass. 62; Tyler v Railroad Co., 137 Mass. 238; French v Railroad, 116 Mass. 537; Craig v. Railroad Co., 118 Mass. 431; Elkins v. Railroad, 115 Mass. 190; Mattey v. Machine Co., 140 Mass. 337, 4 N.E. 575; Com. v. Railroad Co., 10 Allen, 189; Sweeny v. Railroad Co., Id. 368, 369, 370, 377; Stokes v. Saltonstall, 13 Pet. 181; Trust Co. v. Railway Co., 27 F. 159. The court cannot lay down, as a matter of law, what precautions one should use in approaching a railroad track, even if plaintiff is bound to prove due care. Railway v. Hutchinson, 25 Cent.Law J. 525, 19; Klanowski v. Railway, 57 Mich. 525, 24 N.W. 801, language of SHERWOOD, J., 529, 530. The intestate had a right to rely, to some extent, upon the signals required by law, and upon others usually given, even if he was bound to exercise due care. The fact that this was an extra train running at a time when there was ordinarily very little traffic on the road, and the fact that the intestate crossed the tracks every night at about the same time, and at a time when there was the least done upon the tracks, were very important considerations in the case. Trust Co. v. Railway, 27 F. 159; Gaynor v. Railway Co., 100 Mass. 211-213; Chaffee v. Railroad Corp., 104 Mass. 115; Roberts v. Railroad, 25 Cent.Law J. 68. If the plaintiff had been bound to prove due care upon the part of his intestate, it would not have been necessary for him to do so by directly affirmative evidence; but the inference of such care might properly have been deduced from all the circumstances; from certain facts which existed and which were proved. Mayo v. Railroad, 104 Mass. 137; Com. v. Railroad Co., 107 Mass. 236; Railway v. Carey, 115 Ill. 115, 119, 3 N.E. 519. Whether the failure to ring the bell contributed to the injury was a question peculiarly of fact. Proof of this fact can rarely, if ever, be found in direct evidence to that point, but must necessarily and inevitably be inferred from circumstances which are shown to have existed at the time. Such contribution must be deduced by the jury from all the facts in the case. When a case rests, not only upon the existence of certain admitted or proven facts, but also upon the inferences or deductions to be drawn from them, it is the province of the jury to make such deductions. It is not proper for the court to make them except in the most extreme cases, in which there could be but one conceivable deduction. Com. v. Railroad Co., 10 Allen, 189; Railroad Co. v. Stout, 17 Wall. 657, 663; Bayley v. Railroad Co., 125 Mass. 64, language of SOULE, J.; Tyler v. Railroad Co., 137 Mass. 238; Mattey v. Machine Co., 140 Mass. 337, 4 N.E. 575; DANFORTH, Judge, in Greany v. Railroad Co., 101 N.Y. 419, 423, 5 N.E. 425; language of STERRETT, J., in Taylor v. Canal Co., 113 Pa.St. 162, 176, 8 Atl.Rep. 43; Railroad Co. v. Carey, 115 Ill. 119, par. 2, 3 N.E. 519. A thing in law may be said to contribute to a result, although there is an intervening and concurrent cause. McDonald v. Snelling, 14 Allen, 290; Norton v. Railroad Co., 113 Mass. 366. MARTIN, B., in Wilson v. Dock Co., L.R. 1 Exch. 186.
S. Hoar, for defendant.
The court erred in refusing to order a verdict for the defendant, and to rule, as requested by the defendant, that the plaintiff could not maintain the action on the whole evidence. It is well settled that the plaintiff in an action under Pub.St. c. 112, § 213, must allege and prove "that the collision occurred upon a crossing of a highway at grade;" "that the statutory signals required at such crossings were neglected by the defendant;" and "that such neglect contributed to the injury." Wright v. Railroad, 129 Mass. 440; Fuller v. Railroad, 133 Mass. 491. It does not appear that the failure to sound the whistle or ring the bell caused the accident. To decide that such an inference could be drawn, in the absence of any other evidence on the point, would be nullifying the requirement of the statute that it should "appear" that the "neglect contributed to the injury," notwithstanding the decisions of this court that this is an essential allegation in cases brought under this section; for if it always "appears" from proof of neglect to give the statutory signals at any crossing "that such neglect contributed to" any concurrent injury at that crossing, the legislature have inserted an idle requirement, without any meaning whatsoever." But it is a sound rule of construction that every clause and word of a statute shall be presumed to have been intended to have some force and effect. Opinion of the Justices, 22 Pick. 571; Com. v. McCaughey, 9 Gray, 296. Under like statutory provisions in Illinois and in Missouri, the courts of those states have repeatedly decided that, where nothing was proved but failure to give the statutory signals, and concurrent injury, a verdict for the defendants must be directed. Stoneman v. Railroad Co., 58 Mo. 503; Holman v. Railroad, 62 Mo. 562; Braxton v. Railroad, 77 Mo. 455; Railroad v. Loomis, 13 Ill. 548; Railroad v. McKean, 40 Ill. 218; Railroad v. Van Patten, 64 Ill. 510; Same v. Notzki, 66 Ill. 455; Same v. Harwood, 90 Ill. 425. Mere proof that the signals were not given leaves the cause of the accident wholly to conjecture. It is submitted that the circumstances which appear do not warrant the inference that the neglect to give the statutory signals contributed to the injury. The belief that it did not contribute is perfectly consistent with the evidence. In such a case it is well settled that a verdict for the defendant should be directed. Smith v. Bank, 99 Mass. 605; Crafts v. Boston, 109 Mass. 519. The jury could only guess how the accident happened, and a guess is no foundation for a verdict. Kennedy v. Sugar Refinery, 125 Mass. 90; Corcoran v. Railroad Co., 133 Mass. 507; Tully v. Railroad Co., 134 Mass. 499; Riley v. Railroad, 135 Mass. 292; Merritt v. Railroad Co., 139 Mass. 238, 1 N.E. 548. On the undisputed facts, it is submitted that, as matter of law, the deceased was grossly negligent, and the court should have so ruled. Wright v. Railroad, supra; Railroad v. Hicks, 13 Bradw. 407; Same v. Weisbeck, 14 Bradw. 525. Had he not been grossly negligent, the intestate could have seen the approaching train, as is shown by the undisputed fact that the head-light shone directly into his wagon before he struck his horse. He could have seen the lighted lantern on the south gate in front of him. It must be presumed, either that he saw these warnings, and recklessly disregarded them, or else that he was utterly lacking in the watchfulness which, by a line of decisions, is required of a man crossing a railroad crossing. Butterfield v. Railroad, 10 Allen, 532; Allyn v. Railroad, 105 Mass. 77; Hinckley v. Railroad, 120 Mass. 257; Wright v. Railroad, supra; Tully v. Railroad, supra; Barstow v. Railroad, 143 Mass. 535, 10 N.E. 255; Burns v. Railroad Co., 101 Mass. 50; Salter v. Railroad, 75 N.Y. 273; Talman v. Railroad Co., 98 N.Y. 198.
OPINION
This is an action brought under Pub.St. c. 112, § 213, by an administrator to recover for the death of his intestate. It was admitted that the deceased was killed by a collision with the defendant's engine upon a crossing of a highway at grade, within section 163, and there was evidence that the engineer neglected to blow the whistle or to ring the bell. But the defendant denies that "it appears that such neglect contributed to the injury," as required by section 213, and argues that to allow the connection to be inferred from the neglect and the accident alone, is to make the clause of the statute nugatory.
The accident happened more than half way across the distance of 168 feet between the gates of the crossing, and the defendant further argues that the conduct of the deceased, the moment before, constituted gross negligence, which would prevent a recovery by the terms of the statute. But if the deceased was not guilty of such gross negligence as would prevent a recovery by the terms of the statute, then whether there was some neglect on his part, or on the part of the defendant's servant, or the conduct of both, was not more ill-judged than might have been expected in the flurry of approaching danger. The intervention of...
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