Bayley v. Eastern R. Co.

• Decision Date: 18 July 1878
• Citation: 125 Mass. 62
• Parties: Elizabeth Bayley, administratrix, v. Eastern Railroad Company. Stephen Sibley v. Same
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 62

Elizabeth Bayley, administratrix, v. Eastern Railroad Company.

Stephen Sibley v. Same

Supreme Court of Massachusetts

July 18, 1878

Suffolk. Two actions of tort. The first was for personal injuries to the plaintiff's intestate, Stephen Bayley occasioned by a collision with one of the defendant's trains at a grade crossing of its railroad over Everett Avenue, in Chelsea. The second was for injuries to the plaintiff's horse and wagon, while being driven by Bayley, his servant, from the same cause.

At the trial in the Superior Court, before Bacon, J., the jury returned a verdict for the plaintiff in each case; and the judge allowed a bill of exceptions, the material parts of which appear in the opinion.

Exceptions overruled.

S Lincoln, Jr., for the defendant.

E. O. Shepard, for the plaintiffs.

Soule J. Endicott & Lord, JJ., did not sit.

OPINION

Soule, J.

There was evidence in the case that the accident happened about eight o'clock in the evening of August 19, 1876; that there was no moon, and it was pretty dark, though the darkness had not fully set in; that the weather was fair; that the intestate, Bayley, was driving along a highway from which the road of the defendant was visible for about half a mile; that the highway approached the railroad at an angle of sixty degrees; that Bayley was sitting in a covered wagon, about two feet back from the forward end of the covering, and was driving at a smart trot until he reached the immediate vicinity of the crossing; that there was a gas-light by the crossing, and a railroad gate, which, when closed to indicate the approach of a train, crossed the highway at the opposite side of the railroad to that from which he was coming; that, just before he reached the track on which the train was running, the gate-keeper employed by the defendant began to close the gate, and shouted to Bayley to stop, and swung his lantern, and thereupon Bayley reined up his horse, and brought him to a full stop; that, immediately after this, the gate-keeper shouted to Bayley to hurry up, and Bayley started his horse, and, before getting across the track, was struck by the engine and hurt, and the horse and wagon, the property of the plaintiff in the second case, were damaged. There was also evidence that the bell on the engine was not rung, nor the whistle sounded, as required by law.

On this evidence, the learned judge who tried the case properly refused to rule that the jury would not be justified in finding a verdict for the plaintiff in either case. If the jury were satisfied that the defendant neglected to give the signals, by ringing the bell or whistling, required by the St. of 1874, c. 372, § 123, the plaintiffs would be entitled to recover, unless it was shown that Bayley was guilty of gross or wilful negligence, or was acting in violation of law, and that such gross or wilful negligence or unlawful act contributed to the injury. St. 1874, c. 372, § 164. The plaintiffs were therefore entitled to go to the jury on the question whether the defendant gave the signals or not. The exception taken to the terms of the ruling given to the jury on this point was waived at the argument.

A question remains on the refusal to rule that, if the signals were given, there was no evidence which...