Bell Cab Co. v. New York, New Haven and Hartford Railroad Co.

• Decision Date: 30 January 1936
• Citation: 293 Mass. 334
• Parties: BELL CAB COMPANY v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 334

BELL CAB COMPANY v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, Worcester.

January 30, 1936

September 23, 1935.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.

Negligence Railroad, Grade crossing. Practice, Civil, Interrogatories. Evidence, Presumptions and burden of proof, Interrogatories. Railroad.

Uncontradicted answers to interrogatories bind the interrogating party introducing them.

Evidence that on a dark, foggy night, a freight train was passing over a grade crossing where the gates were raised and there was no flagman, without giving warning signals, and that an automobile ran into the side of it, showed no negligence of the railroad corporation.

G.L. (Ter. Ed.) c 160, Sections 138, 232, do not apply to a train after it has occupied a grade crossing.

THREE ACTIONS OF TORT. Writs in the first two actions dated May 7, 1930, and that in the third action dated December 20, 1932.

The actions were tried in the Superior Court before F. T. Hammond, J. S. H Jaffee, for the plaintiffs Bell Cab Company and another, submitted a brief.

A. W. Howes & D.

A. Foley, for the plaintiff Dunne, submitted a brief.

Joseph Wentworth, for the defendant.

CROSBY, J. These actions of tort, tried together, arise out of a collision between a taxicab and a freight car attached to the defendant's train which was crossing over the

Boston and Worcester Post Road in the center of the town of Northborough. The first action is to recover for damage to the plaintiff's taxicab; the second is for personal injuries to the operator of the taxicab; and the third is for personal injuries to the plaintiff who was a passenger in the taxicab. At the close of the evidence the defendant filed a motion for a directed verdict in each of the three cases. In the first and second cases the trial judge allowed the motions, and reported the cases to this court upon the stipulations that if he was wrong judgment should be entered for the plaintiff in each case in an agreed amount, otherwise judgment was to be entered on the verdict. In the third case, the defendant's motion for a directed verdict was denied as to the first count, which was based on common law negligence, and allowed as to the second count, which was based on a failure to give the signals required by statute. This case was also reported to this court upon the stipulation that if the plaintiff was entitled to go to the jury on either count of the declaration, then judgment is to be entered for the plaintiff in the sum of $1,250; but if a verdict should have been directed for the defendant on both counts then judgment is to be entered for the defendant.

It does not appear from the record that any question of pleading was raised at the trial, nor is any such question reported specifically. It is considered that the cases were intended to be reported for the determination of the questions whether the evidence was sufficient to warrant a verdict in favor of any one or all of the plaintiffs under a count at common law for negligence, or under a count based on the provisions of G.L. (Ter. Ed.) c. 160, Sections 138, 232, for failure to give the statutory signals of sounding a whistle and ringing a bell on a locomotive engine before crossing a public way. Horowitz v. State Street Trust Co. 283 Mass. 53 , 56, 57. Taking the evidence in the report in the light most favorable to the plaintiffs, the jury could have found that the accident occurred in the town of Northborough, in this Commonwealth, at about four o'clock in the morning of September 7, 1929, at the public railroad grade crossing of the defendant's railroad and the main highway between

Worcester and Boston; that a taxicab owned by the plaintiff Bell Cab Company, which was being operated by the plaintiff Vigneault was proceeding from Worcester toward Waltham with the plaintiff Dunne and others as passengers; that Dunne was sitting on the front seat next to the driver, and the other passengers were on the rear seat; that the taxicab came into collision with the side of the eighth freight car from the front of the defendant's freight train which was then moving over the crossing under the control of the defendant's employees; that at the time of the accident the railroad gates were not lowered, and there was no regular flagman or watchman on duty; that all the precautions that were...