Boucher v. New York, N.H. & H.R. Co.

• Citation: 82 N.E. 15,196 Mass. 355
• Parties: BOUCHER v. NEW YORK, N.H. & H. R. CO.
• Decision Date: 15 October 1907
• Court: United States State Supreme Judicial Court of Massachusetts

196 Mass. 355

82 N.E. 15

BOUCHER v. NEW YORK, N.H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

October 15, 1907

COUNSEL

Marvin M. Taylor, for plaintiff.

John L Hall, for defendant.

OPINION

KNOWLTON C.J.

The plaintiff was injured at a grade crossing of the defendant's railroad in Worcester. The undisputed evidence tended to show that he was driving down Front street, across the tracks of the defendant and of the Boston & Albany Railroad, directly in front of the union station; that the street crosses nine tracks at that point the first five of which go under the arch of the station; that the first three of these are used by the New York Central & Hudson River Railroad Company under a lease from the Boston & Albany Railroad Company, and the fourth and fifth for the passenger service of the defendant's railroad; that the sixth, seventh and eighth are used for freight service, the sixth and eighth principally by the New York Central & Hudson River Railroad Company and the seventh by the defendant, and that the ninth was a spur track to the Bradley Car Works. There was evidence that five lines of electric cars run through the street and over these railroad tracks at this crossing, and that many teams pass there. Two gates were maintained on each side of the tracks, which were raised and lowered by a gate tender, whose gate house was near the center of the crossing at the east side of the street, between the fourth and fifth tracks. The plaintiff was driving southward, the gates were up on the north side of the crossing and he drove upon the tracks, but, before he got across them, the gates on the southerly side were seen to be down, and he stopped his horse. The evidence tended to show that, as he was driving upon the crossing, one of the defendant's trains was about to pass over it on the fifth track, and the gate tender started to put down the gates to exclude persons from the crossing. The gates on the northerly side were left up long enough to allow an electric car upon the crossing to pass off to the northward, and during that time the plaintiff and his companion drove on. Afterwards the gate tender raised the gates on the southerly side to let the plaintiff off, but lowered them again quickly, so that one of them came down between the horse and the plaintiff as he was sitting in the wagon, driving southward. The judge ruled, at the defendant's request, that the defendant was not liable for these acts of the gateman, and ordered a verdict for the defendant.

In the argument before us both parties have assumed, and we think rightly, that there was evidence for the jury on the questions whether the plaintiff was in the exercise of due care, and whether there was negligence on the part of the gateman. We must, therefore, consider the evidence bearing upon the relations of the gateman to the defendant.

We understand that the locations of the Boston and Albany Railroad and of the defendant's railroad are adjacent to each other at the crossing. The jury could hardly fail to find that this was a dangerous crossing, calling for great precaution for the safety of travelers on the street. Gates were maintained, to be raised and lowered by a gateman, to exclude travelers from the defendant's tracks while trains were passing. There was no evidence to show whether the defendant had been ordered to maintain gates and an agent to open and close them, under Rev. Laws, c. 111, § 192. If it had, it would be bound to obey the order, and would be liable for the negligence of its agent in the management of the gates. If there had been no such order, the jury well might find that it was the duty of the defendant to maintain such gates and a gateman for the protection of travelers on the street, and that it would be liable for accidents caused by its failure to do this. Eaton v. Fitchburg Railroad Company, 129 Mass. 364. The evidence tends strongly to show that, with or without an order under the statute, there were compelling motives of duty of pecuniary self-interest to induce the defendant to make provision for the operation of gates by the side of its tracks at this crossing. These gates were being operated at the time of the accident, and had been maintained and used for a long time. Without further evidence the jury might well find that this business, being done on the defendant's premises, apparently in its interest, was the defendant's business. The evidence went further, and tended to show that it was being done under some arrangement made by the defendant with the New York Central & Hudson River Railroad Company, the nature of which was not disclosed. This strengthened the reasons for finding that the...