Kenny v. Boston & M.R.r.
| Decision Date | 18 May 1905 |
| Citation | 188 Mass. 127,74 N.E. 309 |
| Parties | KENNY SAUNDERS v. BOSTON & M. R. R. SAUNDERS v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. T. A. Fitzgerald and M. L. Jennings, for plaintiffs.
Archibald R. Tisdale, for defendant.
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 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 the second, rail of the fourth track. Both plaintiffs heard the rumbling of the engine just as they were hit. A witness called by the plaintiffs testified that the engine started up when the plaintiffs were between the second and third tracks, and that the 'engine was going at a pretty high rate of speed, for a crossing.' He also testified that the gateman got the gates down just as Kenny was struck. The plaintiffs, or one of them, admitted that the gateman was known to them to be old and crippled, and had difficulty with the gates; also that very often engines have come over the crossing when both gates were up. The plaintiff Mrs. Saunders, who saw the engine standing still, testified that it was then 'halfway between Marginal and Webster streets, but a little nearer Webster street.' These streets are two hundred and forty feet apart. But the witness called by the plaintiffs hereinbefore referred to testified that while...
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