Chase v. Maine Cent. R. Co.
| Decision Date | 09 January 1897 |
| Citation | 167 Mass. 383,45 N.E. 911 |
| Parties | CHASE v. MAINE CENT. R.R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert
M. Morse and J.W. Spaulding, for plaintiff.
Strout & Coolidge and Henry N. Rice, for defendant.
This is an action of tort, at common law, for injuries sustained by the plaintiff's intestate, by reason of the wagon in which he was driving coming into collision with a train of cars of the defendant, at a place in Richmond, in the state of Maine, where a highway crossed the single-track road of the defendant, at grade. The accident happened in the afternoon of August 17, 1887, and the trial took place in the superior court in January, 1896. The presiding judge, at the close of the plaintiff's evidence, ruled that the plaintiff had offered no testimony which would authorize the jury in finding that the intestate was in the exercise of such due care as is required by law to enable the plaintiff to recover. The report set forth sufficient acts of negligence on the part of the defendant, in running its train at a higher rate of speed than is allowed by law where a flagman or a gate is not maintained at a crossing at grade and in not ringing a bell and sounding a whistle. On the question of due care on the part of the intestate, there was evidence tending to show the following facts: On the day of the accident, the intestate was driving a horse in an open Concord wagon, at a moderate trot, from Pleasant street, through South street, westerly towards and across the railroad. With him in the wagon was a boy, named Haley, who was then six years and eight months old, and who was the only witness produced who was present at the time of the accident. Pleasant street appears from a plan produced at the trial to be about 420 feet from the crossing on South street, where the accident occurred. As the intestate approached the track he did not stop or slacken speed; but, when he got to the railroad, the horse started up, and attempted to cross the track in front of the train, which was approaching from the north. Then the intestate attempted to pull up the reins which had been loose,--that is, not pulled up tight,--but did not stop the horse. The train struck the wagon, and the intestate and the boy were thrown violently therefrom, and the intestate died from his injuries 17 days afterwards. There was also evidence that when near the house of one Scott, which is about 50 feet from the crossing, the intestate pulled out his watch, and looked at it; that the train which struck the wagon was known as the "Flying Yankee," and it passed through the town once a day, going south; that the time it was due was well known, approximately; that on the day of the accident it was late, one witness testifying it was 19 minutes late; and that the train was making no more noise than usual, and was accompanied by a great cloud of dust. There was also evidence that this train, in summer, was as likely to be late as on time. South street, from Pleasant street to the crossing, was a level, smooth road. There was evidence that the railroad, before reaching the crossing, passed through a cut, the highest point of which was 7 feet, 200 feet from the crossing. There were also some fences, 31/2 to 4 feet high, and a building and barn, and some fruit trees, all of which, it is contended, interfered with the view of the approaching train. It is obvious, however, that a man on the seat of an open Concord wagon would not have his view interfered with by the fences, or by the fact that the cars passed through the cut. The building and barn were on the corner of Pleasant street and South street, and could not have interfered with the intestate's line of vision except for a few moments, after turning into South street. If the fruit trees were high enough to obstruct the view of the intestate, it appears from the plans and photographs that, during nearly all the time he was on South street, these trees would not interfere with his seeing the train for a distance of, at least, 200 feet from the crossing until it arrived there.
The principal argument for the plaintiff is based upon the theory that the evidence shows that the railroad was visible but from two places on South street between Pleasant street and the crossing, namely, at a point 50 feet from the crossing and from one further towards Pleasant street, the exact position of which is not clearly defined; and that, when the intestate arrived at the last point, the train had not reached the point on the railroad visible from there, and at 50 feet from the crossing it was too late to do anything. So far as the testimony goes, we do not think that it supports the plaintiff's contention. It nowhere appears in the testimony that the railroad was visible from South street only from these two points. The report states as to the testimony of one Randlette as follows: It does not appear from the report whether this witness was on the ground when he made his observation, or seated on a wagon. The...
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