Debbins v. Old Colony R. Co.

• Decision Date: 21 September 1891
• Citation: 154 Mass. 402,28 N.E. 274
• Parties: DEBBINS v. OLD COLONY R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 402

28 N.E. 274

DEBBINS v. OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

September 21, 1891

COUNSEL

J.E. Cotter and C.J. Jenney, for plaintiff.

J.H Benton, Jr., for defendant.

OPINION

HOLMES J.

This is an action for personal injuries. After the evidence was all in, the judge before whom the case was tried directed a verdict for the defendant; and the question is whether the direction was right. The plaintiff's evidence tended to prove the following facts: On October 22, 1888, the plaintiff came to the defendant's Spring-Street station in Boston intending to take the 20 minutes past 5 afternoon train for Dedham. He approached the station by Spring street, moving towards the north-east. When he reached it, he found his train already there, on the further track, and the gate across the street on his side closed. The station was a little to his right, on the further side of the track, with a waiting-shed opposite, on the plaintiff's side, the platform of which extended to Spring street. There was planking between the station and the shed, enabling passengers to cross the track on a level. The train extended across this planking back partly across the Spring-Street crossing, and the platform gates on the side of the cars nearest to the plaintiff were closed. The plaintiff passed the gate on the sidewalk, which was not obstructed by it, and began to cross the nearer track diagonally, on the line of Springstreet, intending to go round the rear of the train and to get upon it. While crossing he was struck by another train, coming in from Dedham. According to his own testimony, before doing so he glanced up the track towards Dedham, but saw nothing, there being much steam and smoke from the engine of his train hanging over the track between the station and the shed. The engine which struck him had no head-light, and it was getting towards dusk; but the plaintiff's evidence would not warrant the conclusion that the approaching train could not have been seen if the smoke had not concealed it. There was evidence that the train which ran the plaintiff down was not ringing its bell or sounding its whistle. The gateman was standing in the middle of the highway with his back to the plaintiff, but we see nothing favorable to the plaintiff in this fact.

As there is considerable difference of opinion among the members of the court, we shall not discuss this case further than to say that, in the opinion of a majority, if the provisions of Pub.St. c. 112, § 213, apply, (which we do not decide,) the plaintiff was guilty of gross or willful negligence within the exemption of that section. If he had been merely a traveler on the highway, and had undertaken to cross the track while the gate was closed knowing it to be so, he would have taken the risk of the consequences We express no opinion as to the defendant's contention that he would have been a wrong-doer; but the case would not have been...