Allen v. Boston & M.R.r.
| Decision Date | 26 February 1908 |
| Citation | 197 Mass. 298,83 N.E. 863 |
| Parties | ALLEN v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sweeney, Dow & Cox, for plaintiff.
Henry F. Hurlburt and Damon E. Hall, for defendant.
This is an action of tort for personal injuries received by the plaintiff at a crossing at grade of a highway with a single track branch of the defendant. The plaintiff was driving a pair of gentle easily controlled horses hitched to an ordinary ice cart. He crossed the track of the defendant by an overhead bridge just south of a station of the defendant, and drove down and along the highway, which was an irregular semicircle to the northward, a distance of 407 feet to the grade crossing which was north of the station. The first half of this distance was a descending grade of 5 or 6 per cent., and the 200 feet lying next to the grade crossing was substantially level. The cart was partially loaded with ice. The plaintiff trotted his horses down the hill, but they walked along the level space until they were at the crossing, when they suddenly broke into a trot, and immediately the wagon was struck by a train coming from the south, and the plaintiff was injured. He is bound to show that he was in the exercise of due care. The accident occurred at about half-past 12 on the afternoon of a bright day in May. There were no other travelers on the highway except that a flagman of the defendant, one of whose duties was to flag this crossing, was according to the plaintiff's testimony running behind his vehicle. The plaintiff was familiar with the neighborhood and crossing. He knew a train was due at about the time of the accident, but thought it had passed. There was no dispute that as one approached the crossing from the direction in which the plaintiff came the only obstruction to a view of the tracks to the south, from which the train came, was the station, and that at a point 46 feet from the crossing in the highway there was a clear view of the tracks southerly measured from the center of the crossing, 307 feet; at a distance of 30 feet a like view for 402 feet; at 25 feet, for 766 feet; at 15 feet or nearer, for 1679 feet. The plaintiff testified that he could easily stop his team on this road, with its load and rate of speed, within 10 feet. The only evidence as to the speed of the train was that it was going about 20 miles an hour. The plaintiff testified that he looked for a train at about 25 feet from the crossing, but saw none.
Upon this state of the evidence it is obvious that the failure of the plaintiff to see the train in time to save himself from danger was due to his own negligence. It was possible for him when he was in a place of safety to have looked down the track a distance far enough to have seen any approaching train. The circumstances do not show anything to distract his attention from the track, nor is any excuse shown for failure to exercise his sense of sight...
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