Sluskonis v. Boston & M.R.R.

Decision Date05 February 1938
Citation299 Mass. 413,12 N.E.2d 858
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

November 4, 1937.


Evidence Presumptions and burden of proof, Admission. Negligence Grade crossing. Practice, Civil, Opening statement to jury.

Evidence that a child nearly six years of age was last seen alive ten or fifteen feet from and walking toward a grade crossing of a railroad where the view up the track was obstructed, that signals required by G. L. (Ter.

Ed.) c. 160 Section 138, were not given, and that he had been struck and killed by a train, warranted a finding that he had been struck by the engine, and did not require a finding that he had walked against the train after it had occupied the crossing.

Counsel's opening statement as to a detail of testimony he expected would be given was not a binding admission of its truth and did not preclude him from introducing testimony to the contrary.

Circumstantial evidence is sufficient to prove that actionable injury was caused by failure to give the signals required by G. L. (Ter. Ed.) c. 160,

Section 138.

TORT. Writ in the Superior Court dated June 19, 1933. A verdict for the plaintiff in the sum of $1,210 on the first count of the declaration was returned before Cox, J. The defendant alleged exceptions.

J. DeCourcy, for the defendant.


A. McCarthy, for the plaintiff.

QUA, J. This is an action to recover for the death of the plaintiff's intestate, a girl five years and eleven months of age, at a grade crossing of the defendant's railroad and North Main Street in North Andover on May 11, 1933.

The trial judge directed verdicts for the defendant upon all counts of the plaintiff's declaration except the first count, which was framed upon G. L. (Ter. Ed.) c. 160, Section 232, for failure to give the signals required by G. L. (Ter. Ed.) c. 160 Section 138. In answer to special questions the jury found upon sufficient evidence that the signals were not given. The only exception is to the refusal of the judge to direct a verdict for the defendant on this first count.

As is usual in the trial of disputed issues of fact, the evidence, even that coming from the same witness, is open to varying interpretations, but upon a careful examination of the whole of it from the viewpoint most favorable to the plaintiff we think these facts could have been found: The accident happened between half past seven and a quarter of eight o'clock. "It was just growing dim." There were three tracks at the crossing which ran approximately at right angles to the highway. The plaintiff's intestate approached the crossing from the north, walking on the sidewalk on the east side of the highway. The train came from the east. A person approaching the crossing as the plaintiff's intestate did would have to come within about five feet from the crossing before he could see a train coming from the east "because of all the trees over there." There was also a "shanty," and there were bushes along the right of way. There was a curve in the track on that side of the highway. The deceased was seen walking slowly past a pole about ten or fifteen feet from the crossing. After that "about a fraction of a second the engine come passing by." It was a big engine pulling a freight train. When the train had passed the deceased was no longer in sight. Her body was found in a "hollow" or "ditch" beside the track. One witness placed it about twenty feet from the west side of the crossing. Another placed it approximately sixty feet and six inches "from the crossing." There was "some brain matter" on the roadbed of the railroad about six feet from the body toward the crossing. The medical examiner testified that there were many broken ribs on both sides of the body; that there were fractures of the left ankle and of the left upper arm; that there were many slight bruises and lacerations on the skull; that the cause of death was a crushing blow to the skull; and that from the appearance of the body it might have been run over by an automobile, but not by a train. No witness testified to having seen the precise manner of contact between the train and the child.

The principal question in the case arises from the defendant's contention that the deceased was not struck by the engine while she was passing over the crossing, but that she walked into the side of the train after the engine had passed her and while the train was already occupying the crossing. The judge instructed the jury without exception that if this was the fact the plaintiff could not recover. This instruction became the law of the trial. Button v. Crowley, 284 Mass. 308 , 313. Doubtless the ruling was based upon a statement in Bell Cab Co. v. New York, New Haven...

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