Fahy v. Dir. Gen. of Railroads

• Decision Date: 12 April 1920
• Citation: 235 Mass. 510,126 N.E. 784
• Parties: FAHY v. DIRECTOR GENERAL OF RAILROADS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 510

126 N.E. 784

FAHY

v.DIRECTOR GENERAL OF RAILROADS.

Supreme Judicial Court of Massachusetts, Middlesex.

April 12, 1920.

Exceptions from Superior Court, Middlesex County; Robert F. Raymond, Judge.

Action by Danied P. Fahy against the Director General of Railroads. Verdict for plaintiff, and defendant excepts. Exceptions overruled.James J. Kerwin and James C. Reilly, both of Lowell, for plaintiff.

Trull, Wier & O'Donoghue, of Lowell, for defendant.

CARROLL, J.

The plaintiff was injured by jumping from the rear seat of an automobile, in which he was riding as the guest of the owner and driver, Frank L. McKean, at a double-track grade crossing in the town of Dunstable. There was evidence that about 500 feet from the crossing the automobile was stopped and as it started McKean told the plaintiff and two companions who were with him that they were approaching the crossing and to ‘listen for a bell or whistle.’ The road was down grade to a point about 15 feet from the crossing, then up grade to the crossing. From a distance of 200 feet to within about 8 feet of the nearest rail, or 27 feet from the farthest rail, as stated by the witnesses, there were bushes which obscured the view of an approaching train. When the automobile going at the rate of 15 miles an hour was within 27 feet of the farthest track, upon which the train was approaching, both McKean and the plaintiff saw the train, then about 125 feet away. McKean started the automobile forward and the plaintiff jumped to the ground, striking his foot against the planking. The automobile safely passed the crossing. The plaintiff testified that he was looking and listening for a bell or whistle and heard none, and neither saw nor heard anything indicating the approach of a train until he was within 27 feet of the track. The jury found that the statutory signals were not given.

1. The defendant contends that the omission to give the statutory signals was not a contributing cause to the plaintiff's injury. If the jury believed the testimony of the plaintiff, that the view of the train was concealed by the bushes and while listening he heard no signal by bell or whistle, they could find that by beason of the defendant's neglect, he was placed in a position of great danger but a short distance from a rapidly moving train, and that this neglect contributed to his injury. Doyle v. Boston & Albany Railroad, 145 Mass. 386, 387, 14 N. E. 461;Kelsall v. New York, New Haven & Hartford Railroad, 196 Mass. 554, 555, 82 N. E. 674;Engleman v. Boston & Maine Railroad, 210 Mass. 179, 181, 96 N. E. 73;Griffin v. Hustis, 234 Mass. 95, 125 N. E. 387.

2. There was evidence from which the jury could find that the plaintiff did not surrender all care for himself to the caution of the driver McKean. He testified that he was looking and listening and relied on himself to learn of the approach of the train; and if it could be said that McKean was reckless and lacking in due care in not bringing the automobile to a...