"Enos
H. Bigelow, a witness called by the plaintiff, was asked by
the plaintiff's counsel whether, just before the
collision, while riding towards the crossing, he saw any
sign-board at the crossing. The defendant objected to the
evidence, on the ground that the plaintiff had not alleged in
his declaration that at the time of the collision there was
no sign-board at the crossing, or that the absence of a
sign-board at this crossing had any connection with the
collision or alleged injury. The court admitted the evidence
not for the purpose of showing negligence in the defendant,
but as bearing on the question whether the plaintiff was in
the exercise of due care at the time. To this ruling the
defendant excepted. The witness answered that there was no
sign-board at the crossing at this time. The court admitted,
against the defendant's objection and subject to the
defendant's exception, other evidence tending to show
that there was no sign-board at this railroad crossing at the
time of the collision, for its bearing on the question of the
plaintiff's care at the time, but not for the purpose of
showing negligence in the defendant.
"Enos
H. Bigelow, a witness called by the plaintiff, testified as
follows: 'Sometime after four o'clock in the
afternoon, on February 21, 1871, I started in a top-buggy
from Framingham, and drove to the house of the Elkins boy,
and there took the Elkins boy in. I had never seen the Elkins
boy before; don't know how far this was from the
railroad; should think one or two miles. I didn't know
the road. I was driving, sitting on the left side, and the
Elkins boy on the right side. The carriage was four-wheeled
and covered, and was going at an ordinary rate of speed; the
horse was not a very good one for speed; I quickened him up
once in a while; was going at a fair trot. I saw no sign; I
first knew I was on the railroad from hearing a sharp quick
whistle right at the side of the crossing; previous to that
had heard no whistle or ringing of a bell. When I heard the
whistle I had my watch out, and the reins were in one hand; I
then put the watch in my mouth and seized the reins, and that
is all I know. Till I heard the whistle, I did not know there
was a railroad track. It seemed to me the whistle was right
by the boy. I did not hear the engine or cars; ground was
frozen; carriage not new--don't know how old--and rattled
some, and the ground was rough. It was between five and six
o'clock. I did not see by my watch what time it was. It
was growing dusky at the time.' Cross-examined. I went
for Mrs. Allard, the teacher, to get the boy's mother.
She was not at home, and the boy Elkins went with me to show
where his mother was. I hadn't much conversation with the
boy while riding along. I remember talking with him; I was
looking at my watch to see what time it was, not showing it
to the boy. I was told to get back by six o'clock, and
was not hurrying. I had quickened the horse,--had struck him
with the whip.'
"Jackson
W. Parker, a witness called by the plaintiff, testified:
'I live near the crossing; lived there all my life; for
forty-three years. This road crossing the railroad has been
used as a highway as long as I remember anything. I remember
seeing these boys driving by. I went out the back door to get
a rope to tie the horses. I saw this team go by, and did not
see them afterwards. Both the houses near the crossing are
mine. The horse was going at a slow trot, in my sight, for a
distance from one corner of the court room to the other; cars
then came along; they blowed the whistle just before they got
to the crossing, then whistled for brakes, to stop; cars were
ten or fifteen rods from the crossing when they whistled, as
near as I could judge. I heard the cars coming. I don't
remember hearing any bell or whistle before. I saw that there
was a smash-up, and went down; the boys were together;
Bigelow boy was hurt; Elkins boy said he was not hurt; both
boys were walking around, as I supposed, hunting up the
horse.' Cross-examined. 'The crossing was from
fifteen to thirty rods from my house, and my house is on the
east side of the street. I went home with the Bigelow boy;
the Elkins boy went home on foot. Elkins boy used to pasture
a cow in my field the summer before, within twenty or thirty
rods north of my house. There is a schoolhouse about eighty
rods north of the railroad. I had just come out of the house
that minute when I saw these boys driving by. I came out and
was fussing with a rope and heard the first whistle. The
first whistle was a crossing whistle, what I am in the habit
of hearing when the cars are at the eighty-rod post. I could
see them, the boys, till within a few rods of the crossing. I
could have seen the cars before I saw them first if I had
looked up. The whistle was a quarter of a minute in length;
then they broke up.'
"Charles
Hyde, a witness called by the plaintiff, testified as
follows: 'At the time of the accident I lived at the
first house on the right-hand side north of the crossing. I
didn't see the boys; I saw the carriage going by right
opposite the house, horse going at a common trot; didn't
see who was in the carriage; horse and carriage were in view
till they reached the crossing; when they got to the crossing
I saw the cars on to them. My house is on an elevation. I
didn't see the cars till I saw their carriage on the
track. I heard the cars whistle five rods, I should judge,
from the crossing. I didn't hear any ringing of the bell
or any whistling before. I could look from my house to the
crossing. At the time of the whistle the carriage was about
on the track; I couldn't tell exactly where, but about on
the track. I didn't see the collision, and I didn't
go out of the house or down to the crossing. No sign-board at
the crossing.' Cross-examined. 'When the carriage
passed I was in the kitchen on the south side of the house
towards the railroad. I was standing at the window, at work;
I saw the carriage when opposite the house, no window in the
road side of the room I was in; window and doors of the room
were shut. First I heard was the whistle; I was looking
towards the crossing at the time; I saw the cars right after
I heard the whistle; whistle might have been a quarter of a
minute long, but it did not seem so. Cannot say if the
carriage got to the line of the fence along the northerly
side of the railroad; I saw the cars, carriage and all, at
the same time; I expected to see them smashed, all the time.
Mr. Parker came to my house with the boys; there a half hour
with me and wife; Elkins boy showed no bruise; answered
questions; said he was not hurt; he had on a thick overcoat
and tippet on his neck, cap on his head. I was at work on
shoes; I stopped working and looked at the carriage after it
passed, the cars were so near. I heard the cars before I
heard the whistle; that made me think the carriage was in
danger. I saw the carriage, and then heard the cars when the
carriage was between the house and the crossing, half-way
down. From that time I watched it because I thought it had
not time to get across the track. One quarter of a minute
after, I heard the whistle. I first supposed there was no one
in the team, it was going so slow. I thought it ought to stop
or go faster. I think they had a chance to get by the
crossing; I didn't hardly know; I thought no one was in
the carriage, because they didn't go faster. I saw no
jumping of the horse; should not suppose there was any
difficulty in stopping the horse before the crossing; I
should have supposed they had time enough. I thought they
were pretty careless.'
"Persis
Allen, a witness called by the plaintiff, testified that she
was his grandmother; that the plaintiff had lived with her
before the accident and attended school; that he had work
three or four days with his uncle on the south side and near
this crossing, going in the morning and returning at night;
that she used to caution him about crossing the railroad.
"Addie
Merrill, called by the plaintiff, testified that before the
accident the plaintiff attended the school where she taught
and that the school-house was on...
