Brusseau v. New York, N.H. & H.R. Co.
| Decision Date | 23 November 1904 |
| Citation | 72 N.E. 348,187 Mass. 84 |
| Parties | BRUSSEAU v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John W. Cummings and Edward Higginson, for plaintiff.
F. S Hall and C. C. Hagerty, for defendant.
The evidence as to whether the signals required by the statute were given was conflicting, but it cannot be said, as matter of law, that it did not justify the jury in finding for the plaintiff on that issue. See Dalton v. N. Y., N.H. & H R. R., 184 Mass. 344, 68 N.E. 830, and cases cited. If the signals were not sounded, the jury, under the circumstances, might infer that the absence of them contributed to the injury. Doyle v. Boston & Albany R R., 145 Mass. 386, 14 N.E. 461.
The burden was upon the defendant to prove that the plaintiff's intestate was grossly negligent, and it is vigorously contended that, as matter of law, the evidence shows that he was. Although there are cases in which it has been adjudicated, as matter of law, that, under the circumstances, gross negligence was proved (Debbins v Old Colony R. R., 154 Mass. 402, 28 N.E. 274; Emery v. Boston & Maine R. R., 173 Mass. 136, 53 N.E. 278), still, speaking generally, the question whether a particular fact is proved by oral testimony depends largely upon the view taken by the jury as to the credibility of the witnesses; and hence it is comparatively seldom that, in the absence of binding admissions or agreements as to facts, a ruling that, as matter of law, a material fact has been proved, can be given. The evidence in this case tended to show that the plaintiff's intestate was sober, and was driving a quiet and gentle horse at a moderate speed; that in his wagon there were bottles, which rattled; that when near the crossing he shouted 'Whoa' to his horse; that the wagon cover extended over the whole side of the wagon; that there was no bell or whistle to warn him; that for some few minutes before reaching the crossing he had been traveling on a street parallel with and near to the railroad location; that, as he turned into Sawyer street and approached the crossing, his view of the track upon which the train was coming was obstructed by freight cars standing near Sawyer street; that the gates seemingly intended to warn passengers of approaching trains were up; and that the night was somewhat foggy. The evidence tended further to show that he was awake and guiding his...
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