Chase v. New York Cent. R. Co.

• Decision Date: 01 March 1911
• Citation: 94 N.E. 377,208 Mass. 137
• Parties: CHASE v. NEW YORK CENT. R. CO. (two cases). HANCOCK v. SAME. PAGE v. SAME (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 137

94 N.E. 377

CHASE

v.NEW YORK CENT. R. CO. (two cases).

HANCOCK

v.SAME.

PAGE

v.SAME (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

March 1, 1911.

Report from Superior Court, Worcester County; George A. Sanderson, Judge.

Separate actions by Louis S. Chase, Sumner H. Hancock, Irving H. Page, and Alice J. Page against the New York Central Railroad Company. There were verdicts for plaintiffs, and pursuant to stipulation they are set aside, and the cases reported to the Supreme Judicial Court. Judgments for defendant.

C. W. Bartlett, Webster Thayer, and A. T. Smith, for plaintiffs.

R. A. Stewart, H. J. Hart, L. R. Chamberlin, and E. S. Kochersperger, for defendant.

KNOWLTON, C. J.

These are five actions to recover damages caused by a collision of an automobile, in which the plaintiffs were riding, with a locomotive engine and a combination passenger and baggage car of the defendant, at a crossing of the highway by the railroad in East Brookfield, on August 21, 1906. The second of the actions is for the death of the plaintiff's intestate, caused by this accident. Each of the others has counts at common law, as well as a count under St. 1906, c. 463, pt. 2, § 245, founded upon the alleged neglect of the defendant to give the signals required by law at railroad crossings. A great variety of questions arose at the trial, some of which it will not be necessary to decide. It was arranged with the judge, by agreement of counsel, that the five cases, with another brought by the Stevens-Duryea Company to recover damages for injury to the automobile, should be submitted to the jury, and that if verdicts for the defendant were returned in any of the cases the findings of the jury should be final. If they should find for the plaintiff in any of the cases, the verdicts were to be set aside, and the cases reported to this court upon the question whether the judge was justified as a matter of law in submitting them to the jury. If he was not, judgments were to be entered for the defendant. If the cases were rightly submitted, judgments were to be entered for the plaintiffs upon the verdicts, subject to certain stipulations as to possible motions for a new trial on the ground of excessive damages, which are not now material.

The question before us is whether, upon such of the evidence as is material and competent, the cases could properly be submitted to the jury. Ordinarily the first inquiry upon such a report is whether there was evidence of negligence of the defendant or its servants. The accident happened at a crossing of the branch of the defendant's railroad that runs four miles from East Brookfield to North Brookfield. The highway at that point runs nearly east and west and the railroad nearly north and south, although the two roads at the crossing are not exactly at right angles, the larger angle between them being at the right of the plaintiffs as they approached the crossing, which was the direction from which the train came, and the smaller angle being at their left. The plaintiffs were going westward on their way from Boston to Chicopee Falls. The accident happened at about 12 o'clock, on a bright day in August. The plaintiffs were riding in an automobile of 50 horse power, weighing about 3,750 pounds when empty, designed to carry seven passengers, and capable of going at a speed of 60 miles an hour when carrying five persons. Hancock, who was running the automobile, was a chauffeur of large experience, who has driven automobiles in different races, and who drove one of this kind a mile, in one race, at a speed of 70 miles an hour. He was familiar with this crossing, having driven over it many times in each direction. The plaintiffs Irving H. Page and Alice J. Page had been over it a considerable number of times, and had observed it in passing. Neither the other plaintiff nor his wife, the intestate, had ever passed over it.

The country for a considerable distance on the highway and along the railroad is nearly level. The ordinary sign on the highway to warn travelers of the danger of the crossing was maintained, and the plank on the crossing cattle guards at the sides, and other objects, showed plainly that this was a railroad crossing. The highway was a dirt road, hard, in good condition and descending at a very slight grade in the approach to the crossing from the east. From most points on the way, for a considerable distance east of the crossing, a train approaching from the north could be plainly seen, although there were points where the view would be obstructed by houses, trees or shrubbery. An engineer, who presented a plan made from a survey, testified to the distances from the crossing up the track, northward, that a person standing in the middle of the railroad could be seen from points in the middle of the highway at different distances from the middle of the crossing. From a point 10 feet east of the crossing one can see up the track 833 feet; from a point 20 feet east, 713 feet; from a point 30 feet east, 613 feet; from a point 40 feet east 433 feet, and so on, with gradually diminishing distances from points at intervals of 10 feet of additional distance eastward, until, from a point 175 feet east, one can see up the track only 118feet. The crossing is in a country town, but there is quite a large amount of travel over it. The trains over this branch road are very few.

Plainly the corporation itself could not be found to be negligent in maintaining this crossing at grade, on a country road, with the sign and other appointments described in the testimony. It was within the authority of the statute. There had been no requirement by the railroad commissioners under the provisions of Rev. Laws, c. 111, § 192, that gates, or a flagman, or an electric signal, should be maintained there, and the conditions shown in the evidence were not such as would warrant the jury in finding negligence on the part of the corporation in failing to provide such appointments voluntarily. Hubbard v. Boston & Albany R. R., 162 Mass. 133-135, 38 N. E. 366;Com. v. Boston & Worcester R. R., 101 Mass. 201.

The only negligence on the part of the defendant's servants for which there is a possible ground of contention was in running the train too rapidly, or in failing to give the statutory signals required at crossings. At to the first, it appeared that there are no stopping places between North Brookfield and East Brookfield. The running time is 10 minutes for the 4 miles. There were numerous witnesses who testified as to the speed of the train at the time of the accident, no one of whom estimated it at more than 25 miles an hour. The weight of the evidence tended to show that the train was running at from 20 to 25 miles an hour. The only evidence upon which the plaintiffs rely, as tending to show that it was going faster than this, is the testimony of the engineer, who was asked in cross-examination as to the rate at which he was running in different parts of his course. He gave estimates of miles per hour, from which the plaintiffs' counsel compute the time spent in going his first mile as 2 minutes and 30 seconds, the time for the second mile as 2 minutes and 24 seconds, and the time for the third mile as 2 minutes and 25 seconds, making an aggregate for the 3 miles of 7 minutes and 19 seconds. He testified that the distance from North Brookfield to the crossing is 3 1/2 miles, and that the train left North Brookfield at 7 minutes before 12 o'clock, and he gave the time of the accident as [208 Mass. 143]1 minute past 12 o'clock, as nearly as he could judge. Upon these estimates and computations there were but 41 seconds in which to run the last half mile before the accident, from which it is contended that the train was then running at the rate of 44 miles an hour. Another witness testified that he heard the whistle and the crash of the accident, and he judged that there was an interval of 20 seconds between them. A speed of 80 rods in 20 seconds would be at the rate of 45 miles an hour. Treating these figures as exactly correct, which were given only as general estimates both of time and speed, and subtracting the aggregate of estimated time for each of the first three miles from another time thought to be about the time of the accident, and a number of seconds is obtained to represent the time of running the last part of the course, which would indicate a speed greater than 25 miles an hour. It is plain that running at the rate of 25 miles an hour is not evidence of negligence. It is also plain, that, if such a computation in seconds, founded only upon uncertain estimates made from judgment and memory, long afterwards, has any tendency to show that the train was then running faster than 25 miles an hour, it is hardly more than a scintilla of evidence to set against the other testimony in the case.

The testimony relied on to sustain the plaintiffs' contention that the defendant's servants were negligent in not ringing the bell and blowing the whistle is not more convincing. The witnesses who were in the automobile testified that they heard no bell or whistle and saw and heard nothing of the approaching train until it was right upon them. Twenty-four witnesses testified positively that they heard the whistle blown in the usual way as the train approached the crossing. Ten witnesses testified with equal positiveness to hearing the ringing of the bell. Several of these testified that it rang all the way from the signal post to the crossing, and several that they could not tell whether it was ringing all the way from the whistling post or only a part of the way. Not one of the witnesses who testified on this subject, other than the persons in the automobile, said anything which under the decisions could be received as evidence that the bell did not ring. Menard v. Boston & Maine R. R., 150 Mass. 386, 387, 23 N. E. 214;Slattery v. N. Y., N. H. & H. R. R., 203 Mass. 453-457, 89 N. E....