Copley v. New Haven & Northampton Co.

• Decision Date: 18 October 1883
• Citation: 136 Mass. 6
• Parties: Jane Copley, administratrix, v. New Haven and Northampton Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 6

Jane Copley, administratrix, v. New Haven and Northampton Company

Supreme Court of Massachusetts

October 18, 1883

[Syllabus Material]

Hampden. Tort, under the St. of 1881, c. 199, § 2, for causing the death of the plaintiff's intestate, on June 30, 1881 at a place in Westfield, where the defendant's railroad crossed a highway at grade. Trial in the Superior Court before Pitman, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff's intestate, a girl sixteen years of age, was killed by a locomotive engine at the time and place alleged. There was contradictory evidence upon the question of the neglect of the defendant corporation to give the signals required by law; but there was no dispute that, when the train of the defendant, hereinafter referred to, was within from three to six rods of the crossing, the alarm-whistle of the engine was blown twice, and that the girl was then travelling in the highway within a few feet of the tracks of the corporation. She knew the locality, and had for a long time been in the habit of passing over the railroad of the defendant at this crossing. The accident occurred about half-past eight o'clock, in the evening of June 30, 1881 it was not dark, but twilight, and a person could easily be recognized for a considerable distance. The railroad track was plainly visible for nearly a mile, nearly all the way from the house of Miss Pratt, hereafter mentioned, to the railroad track. This house was about twelve rods from the crossing. The jury took a view of the premises.

H. F. Avery, in behalf of the plaintiff, testified that he saw the girl approaching the crossing; that she was walking at her usual gait until within three or four feet of the railroad tracks, when the locomotive engine gave the "danger-whistle," and the girl quickened her pace and ran, and went upon the tracks; that when the train whistled it was within two or three rods of the crossing; that he did not hear any other whistle; and that the head-light was burning on the locomotive engine.

Simon Dolan, a witness for the defendant, testified that he saw the girl leave Miss Pratt's house; that, when she was about half-way from the house to the track, the train gave a long whistle at the whistling-post; that the girl then looked towards the train coming, and quickened her pace; that, when the train got within seven or eight rails of her, it gave two short whistles; and that she looked at the train again just before going upon the tracks.

Miss Pratt, a witness for the defendant, testified that after the girl left her house she heard a prolonged whistle; that the girl was then three to five rods from the house; that the girl turned her head and looked towards the train, and at once quickened her pace very much; that the witness went to another part of the house and heard two or three danger-whistles; that she heard the train coming, and judged by the noise it was coming faster than usual.

Michael Burke, a witness for the defendant, testified as follows: I was engineer. I saw the girl about ten to fifteen feet from the track; she was running. I was then fifty to seventy-five feet from the crossing. I gave danger-whistles, put on airbrake, and reversed the engine.

Upon this evidence, which was all the evidence in the case bearing upon the conduct and acts of the deceased, and all that was given as to the way the accident happened, although there was other evidence, not reported, upon which the jury might find that the signals required by law were not given, the defendant asked the judge to rule as follows:

"1. Upon all the evidence in the case, the plaintiff cannot recover. 2. If the jury believe that the deceased knew the train was coming at great speed, or might have known it by the exercise of proper diligence, and attempted to cross the track in front of the engine when the engine was within from three to six rods of her, it was gross negligence. 3. If a long and continuous whistle was given at...