Emery v. Boston & M.R.r.
| Decision Date | 18 March 1899 |
| Citation | 53 N.E. 278,173 Mass. 136 |
| Parties | EMERY v. BOSTON & M.R.R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.H. Russell and R.S. Bartlett, for plaintiff.
Lincoln & Badger, for defendant.
The accident in this case occurred on May 7, 1895, at about half past 8 o'clock in the evening. The defendant company, at the place of the accident, maintained two tracks,--one used for inward, and the other for outward trains, the southerly one being used for inward trains. From Holland street both of the tracks extended towards the east in a straight line for about a mile, so that one standing on the sidewalk on Holland street 15 feet south of the inbound track had a clear and unobstructed view to the eastward along both of the tracks for practically a mile. The view on some portions of the sidewalk on Holland street up to the point 15 feet south of the inbound track was obstructed by buildings. The plaintiff's intestate lived on the northerly side of the crossing, but, on the evening in question, he had been attending a meeting at a building about 280 feet southerly of the crossing, and he was on his way home when the accident occurred. He went along Holland street, crossed the inward track, and was upon the outward track when he was struck and killed by the locomotive engine of an outward-bound freight train. At the time of the accident there were no gates at the crossing, but it was guarded by a man on the north side of the crossing, who was swinging a lantern as the freight train approached. There had been gates at the crossing on each side of the roadbed, which, with gates at another crossing, 140 feet easterly of Holland street, were operated by a man stationed about midway between the two streets. In consequence of a petition presented to the board of aldermen of Somerville for better security at these crossings, the defendant agreed to change the method of operating the gates and, in pursuance of this agreement, two or three days before the accident, the gates were removed from the crossing at Holland street; and from that time, down to and including the time of the accident, the crossing was guarded by a man using a flag by day and a lantern by night. The ironwork of the gates was in position at the time of the accident, but the gates were not in place. The plaintiff had lived in Somerville for a number of years, and was familiar with the crossing and its surroundings, as they were before the gates were removed. He did business in Boston, and from where he lived it was necessary for him, in order to get to the post office or to Boston, either over the railroad or on the electric cars, to pass over the crossing where the accident occurred. The headlight on the locomotive engine was burning at the time of the accident. The evidence for the plaintiff on the question whether or not the bell was ringing when the train approached is rather indefinite, but we incline to the opinion, and shall assume for the purposes of the case, that there was some evidence for the jury that the bell did not ring as the train approached the crossing.
As to the conduct of the intestate just before the accident, there is evidence from two witnesses. One, who was on the other side of the crossing, testified that he saw the intestate just as he stepped on the outer track, and that he tried to jump back. The other witness, a woman, who was coming down the inward track from the west, testified that she saw him cross the first track; that she expected to see him stop, but he kept on; that She further testified that the intestate was walking at a very moderate rate, with his shoulders slightly stooped. It also appeared that the distance between the point 15 feet southerly of the nearest rail of the inward-bound track and the southerly rail of the outward-bound track was, at least, 28 feet. It...
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