Ellis v. Boston & M.R.r.
| Decision Date | 24 November 1897 |
| Parties | ELLIS v. BOSTON & M.R.R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Samuel W. Culver and Walter
M. Lindsey, for plaintiff.
Soloman Lincoln and Thomas Hunt, for defendant.
Upon the evidence, there was no dispute as to how the plaintiff was hurt. He stood upon the street, upon one side of the railroad, intending to walk upon the street to the other side of the railroad. There were the usual gates, which were down and a passenger train stood upon the rails next him. The train moved on, and, when its rear end had left half of the width of the street free, the gates rose, and he started across the railroad. He passed the track which the train had left, and, when he stepped upon the other track, was struck by an engine and tender, backing down upon that track, and moving in the opposite direction from that of the passenger train. He was himself a brakeman upon another railroad, and was perfectly familiar with the crossing; knew that the place was one of the busiest on the two great railroads entering Boston from the north, that a very large number of trains crossed there, and that engines and tenders were likely to go by there at almost any time. The evidence upon which the verdict against him was ordered consisted wholly of his own testimony, and that of another man, who was upon the railroad not far from the street, and who saw the plaintiff waiting to cross, and as he was struck. So far as the question of the plaintiff's conduct is concerned, the whole evidence was consistent; and there was no conflicting testimony to require the interposition of a jury. The plaintiff's whole account of the matter was that, after the passenger train had started, he started across, when the gates rose, and, as he got right on the inbound track, was struck, and did not remember anything until he was over to the depot, when he came to, and was taken to the hospital. On cross-examination he said he did not notice the gates on the further side of the street, and could not say whether they were open, or up or down, and did not look; that he did not look down on the ground as he walked across the tracks; that he started to go across when the rear car had got about mid-day across; and that the next thing he knew he was hit. He did not testify to any thought as to his own safety in crossing, or to any act of observation as to whether or not anything was coming towards him upon the inbound track, or that he looked or listened for anything, or that he exercised any care or watchfulness whatever, or did anything whatever to protect himself from danger. At the same time, he knew all about the crossing, that it was a very busy one, and that cars might be expected at any time. Nor can there be found from the testimony of the other witness any indication that after the plaintiff...
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