Eaton v. Fitchburg R. Co.

• Decision Date: 10 September 1880
• Citation: 129 Mass. 364
• Parties: Jane A. Eaton v. Fitchburg Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 364

Jane A. Eaton v. Fitchburg Railroad Company

Supreme Court of Massachusetts

September 10, 1880

Suffolk.

Judgment on the verdict.

E. D Sohier, for the defendant.

W Gaston & G. A. A. Pevey, (F. A. Worcester with them,) for the plaintiff.

Colt, J. Endicott & Soule, JJ., absent.

OPINION

Colt, J.

The first count in the plaintiff's declaration contains a general allegation that she was injured at a grade crossing while travelling in the highway, "by reason of the carelessness and negligence of the agents and servants of the defendant." It was admitted that the defendant corporation had never been requested by the selectmen, or ordered by the county commissioners or other persons having authority, to erect a gate or place a flagman at this crossing.

The judge ruled at the trial that, in passing on the question of the defendant's negligence, it was competent for the jury, under the declaration, to consider whether the defendant had used such reasonable care, in addition to the ringing of the bell and the blowing of the whistle required by the statutes, as the safety of travellers demanded at this particular crossing. There was much evidence introduced on this point, and the jury were permitted to view the premises.

This ruling is in accordance with the law as settled at an early day by this court, and as recognized in many decisions since. These cases all rest on the common law rule that, when there are different public easements to be enjoyed by two parties, at the same time and in the same place, each must use his privilege with due care, so as not to injure the other. The rule applies to grade crossings, because the traveller and the railroad each has common rights in the highway at those points. The fact that the Legislature has seen fit, for the additional safety of travellers, imperatively to require the corporation to give certain warnings at such crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary. The statute makes positive regulations, and the defendant at its peril is bound to comply with them; but a compliance does not relieve it from any duty it was under before, and the defendant is still bound to take other precautions if necessary. It is sufficient to cite a few of the earlier and later cases. Bradley v. Boston & Maine Railroad, 2 Cush. 539. Linfield v. Old Colony Railroad, 10 Cush. 562. Norton v. Eastern Railroad, 113 Mass. 366. Favor v. Boston & Lowell Railroad, 114 Mass. 350.

But it is contended that, as the corporation had never been required, under the provisions of the Gen. Sts. c. 63, §§ 86-89, and the St. of 1874, c. 372 § 126, to erect a gate and employ a flagman at this crossing, the question whether...