Copithorn v. Boston & M.R.R.
| Citation | 17 N.E.2d 713,301 Mass. 510 |
| Parties | COPITHORN v. BOSTON & M. R. R. |
| Decision Date | 01 December 1938 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.
Action by Harry K. Copithorn against the Boston & Maine Railroad for injuries sustained in a collision between an automobile driven by plaintiff and a passenger train of the defendant at a grade crossing. Verdict for the defendant, and plaintiff brings exceptions.
Exceptions sustained, and new trial ordered as to certain issues.D. A. Foley, of Boston, for plaintiff.
J. DeCourcy, of Boston, for defendant.
This is an action of tort in which the plaintiff seeks damages for personal injuries sustained by him on March 28, 1932, at a grade crossing in Concord, New Hampshire, when the automobile which he was driving and a passenger train of the defendant were in collision. The declaration, which is in four counts, alleges, in substance, in count 1 the failure of the defendant to ring the bell and sound the whistle, as required by law, at the crossing in question; in count 2 that ‘no gates or flagman were employed’ at said crossing and that ‘the defendant negligently and in violation of law failed to maintain such warning signs required by law’; in count 3 that the defendant owned, operated or controlled a railroad which crossed the highway; that while the plaintiff was rightfully at the railroad crossing, he was injured by reason of the negligence of the defendant; that the train, ‘negligently * * * operated and controlled by the defendant and in violation of law,’ was in collision with his automobile; and in count 4 the failure of the defendant to maintain gates at the crossing or to have a flagman there.
At the close of the evidence the judge submitted to the jury five questions, which, as answered, are as follows: ‘Yes'; ‘No’; ‘No’; ‘No’; ‘No.’
After consideration of these questions and answers, the judge directed the jury to return a verdict for the defendant, and the plaintiff excepted. Other exceptions of the plaintiff relate to the exclusion of evidence, to the refusal of the trial judge to give certain rulings, to his refusal to submit additional questions to the jury, and to certain portions of his charge.
The plaintiff testified that he was driving southerly toward Concord shortly before nine o'clock in the morning. The wind was from the northeast, and the falling snow, which was wet and heavy, ‘plastered’ the sides of the trees and poles. He had driven over the crossing in question three or four times, the last time being several years before the accident, and on the day of the accident he knew there was a railroad crossing the highway ‘there somewhere.’ He was ‘just barely ‘crawling along” at about eight miles an hour and could stop his automobile within a foot. He could see ahead ‘perhaps' one hundred fifty feet and, as he approached the crossing, he saw in a direction ‘quartering’ to his left ‘this signal light * * * flash and * * * knew that * * * [he] was coming to a railroad crossing somewhere,’ and that a train was coming. He stopped his automobile instantly, and it did not go a foot after he applied the foot brake. He was then thirty to forty feet from the light, with his engine running and his transmission in ‘neutral.’ If he had stopped six feet before he did, there would not have been any accident. After he had ‘stopped there on the track’ from one half a minute to a minute, through his right window he saw the train coming toward him, fifty to one hundred feet away, on his left. He heard no bell or whistle. He did not see the track until the engine struck his automobile and at that moment he was ‘on the extreme right just off’ a street railway track. He stopped just short of the railroad track but near enough to it so that some part of the engine came in contact with his automobile. ‘It didn't feel as though it [the automobile] had gone over the rail,’ and he did not know where his automobile was with ‘relation to the tracks ‘because the ground was so completely covered with snow, there was no sign of track, railroad or highway or street cars. It was just as blank as could be.’' There was no gateman, gates or flagman at the crossing.
At the place of the collision, the railroad crosses the Daniel Webster highway, which is a main artery of traffic running north and south, ‘with heavy traffic off and on.’ That portion of the highway which is wrought for travel is approximately twenty feet wide, and the railroad crosses it at an acute angle of thirteen degrees, so that the distance which a train traverses at the crossing over the travelled part of the highway is eighty-one feet. On the westerly side of the highway, and approximately parallel with it, at a distance of about three feet to the nearer rail, is the track of the street railway. The grade of the highway approaching the crossing from the north is practically level, and the grade of the railroad track from the southeast, from which direction the train came, is slightly upgrade as one approaches the crossing. About seven feet easterly from the easterly line of the travelled portion of the highway, and about thirty-six feet north of the intersection of that line with the easterly rail of the track, there is a traffic light or flasher, which is operated by the defendant. From a point where a straight line drawn from this traffic light intersects at a right angle the westerly line of the highway, the distance in a northerly direction to the easterly rail is about forty-two feet. There is another railroad traffic light or flasher south of the railroad track, which is also located on the easterly side of the highway approximately fifty feet from the intersection of the easterly line of the highway with the westerly rail. These traffic lights are ‘flasher’ signals, warning of the approach of trains, and operate through a circuit located eighteen hundred feet southeasterly of the crossing which, when passed over by the train, causes the lights to flash continuously until the train has passed over the crossing. The railroad track is straight for a distance of three hundred ten feet in a southeasterly direction from the crossing, where there is a slight curve to the east. There is a clear vision for six hundred feet northwesterly in the direction the train was travelling, ‘straight down the tracks to the crossing.’ Approaching the crossing from the north and at distances of one hundred, seventy-five, fifty, and twenty-five feet north of the easterly rail, an operator of an automobile has a clear and unobstructed view to his left of approaching trains from the southeast of four hundred, four hundred fifty, six hundred, and six hundred fifty feet respectively. The overhang of the locomotive on each side beyond the rails was eighteen inches.
The engineer of the locomotive was seated on the right-hand side of the cab. He testified that the speed of his train, as he was coming to the crossing, was fifteen to eighteen miles an hour, and that, under the weather conditions at the time of the accident, ‘he could see ahead ‘somewhere about 200 feet, probably a little more, but not a great deal’'; that under the same conditions, he could stop his train in about two hundred ten to two hundred fifteen feet ‘from the point of collision’; that the distance ‘in which he could stop was the distance in which he did stop’; that the track was covered with snow and he realized ‘that a motorist coming along down here wouldn't be able to see the rails because of their being covered with snow’; that the locomotive came into collision with the front part of the automobile, ‘practically a head on collision,’ and at the time of the collision, the automobile was not on the track; that its wheels, ‘where they slid in the snow,’ were about ten to twelve inches from the track.
The law of the place where the injury is received determines whether a right of action exists, and the law of the place where the action is brought regulates the remedy and its incidents, such as pleading, evidence, and practice. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477;Gannett v. Boston & Maine Railroad, 238 Mass. 125, 129, 130 N.E. 183.
The plaintiff's exception to the refusal of the judge to submit additional questions to the jury cannot be sustained. This is a matter wholly within the discretion of the judge. Boston Dairy Co. v. Mulliken, 175 Mass. 447, 56 N.E. 711;Viaux v. John T. Scully Foundation Co., 247 Mass. 296, 301, 142 N.E. 81;Spurr v. Shelburne, 131 Mass. 429, 430.
The plaintiff concedes that the answer of the jury to the first question disposes of the issue of negligence under the first count of his declaration, but he contends that there were other issues of negligence that should have been submitted to the jury, and that there was error on the part of the trial judge in instructing the jury that the only facts it was to consider on the question of the defendant's negligence were whether the statutory signals were given and whether the speed of the train exceeded twenty miles an hour...
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