188 Mass. 127 (1905), Kenny v. Boston & M.R.r.

Citation:188 Mass. 127, 74 N.E. 309
Opinion Judge:LORING, J.
Party Name:KENNY SAUNDERS v. BOSTON & M. R. R. SAUNDERS v. SAME.
Attorney:[74 N.E. 310] W. T. A. Fitzgerald and M. L. Jennings, for plaintiffs. Archibald R. Tisdale, for defendant.
Case Date:May 18, 1905
Court:Supreme Judicial Court of Massachusetts
 
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Page 127

188 Mass. 127 (1905)

74 N.E. 309

KENNY

SAUNDERS v.

BOSTON & M. R. R.

SAUNDERS v.

SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1905

COUNSEL

Page 128

[74 N.E. 310] W. T. A. Fitzgerald and M. L. Jennings, for plaintiffs.

Archibald R. Tisdale, for defendant.

OPINION

LORING, J.

The only question raised in these two cases is whether the plaintiffs were, as matter of law, guilty of gross or willful negligence, within Pub. St. 1882, c. 112, § 213. We are of opinion that these cases are like Brusseau v. N. Y., N.H. & H. R. R., 187 Mass. 84, 72 N.E. 348, and not like the cases of Debbins v. Old Colony Railroad, 154 Mass. 402, 28 N.E. 274, and Emery v. Boston & Maine Railroad, 173 Mass. 136, 53 N.E. 278. In this case the two plaintiffs, James Kenny and Annie Saunders, were walking down Webster street, in East Boston, across the railroad tracks, which are laid over that street at grade. There are 10 tracks at this crossing, with gates at each end. These gates are 140 feet distant one from the other. The gates are operated from a gateman's shanty between the fifth and sixth tracks; that is, about the middle of the crossing. The two gates are worked by separate cranks. Both plaintiffs were familiar with the place. When they came on to the crossing the gates were up. They were then walking on the right-hand side of the street. On their right there was a 'string of cars' standing on the second track. When they passed the northwesterly gate, Kenny looked to the left, and saw that the tracks were clear. When Kenny reached the first rail of the second track, he looked to the right. On Kenny's right there was in fact a shifting engine on the fourth track, then standing still, not seen by Kenny because it was behind the 'string of cars' on the second track, already spoken of. When Mrs. Saunders, the other plaintiff, reached the second rail of this second track, she looked to the right and saw this engine. From the second track the two plaintiffs walked along, side by side, in a diagonal direction, to reach the other side of Webster street, for some 30 or 35 feet, talking together, when they were struck by this shifting engine on the fourth track, which had started up without (so the jury were warranted by the evidence in finding) the bell being rung or the gong being sounded. When about to cross the third

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track, Kenny again had looked to the left. He did not remember whether he listened or not. When struck, Mrs. Saunders was on the first, and Kenny on...

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