Flynn v. Boston & A.R. Co.

• Decision Date: 21 October 1897
• Citation: 169 Mass. 305,47 N.E. 1012
• Parties: FLYNN v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 305

47 N.E. 1012

FLYNN v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 21, 1897

COUNSEL

J.B. Carroll and W.H. McClintock, for plaintiff.

Brooks & Hamilton, for defendant.

OPINION

MORTON J.

There was evidence that the plaintiff was in the exercise of due care. He was where he had a right to be, and was doing in the usual manner the work which he had been hired to do. There was also evidence that the horse was safe and gentle. We cannot say that there was not some evidence that the whistle was blown carelessly, by being unduly prolonged. Some of the statements made by some of the plaintiff's witnesses are incredible. But the jury may have thought that they were exaggerations rather than intentional misrepresentations, and it was for them to draw such inferences and to give to the testimony such weight as they thought the appearance of the witnesses and the circumstances disclosed by the evidence fairly justified.

We think that there was no error in the instructions which were given, or in the refusal to give the rulings which were requested by the defendant. In addition to those required by law at crossings, the defendant had the right to establish such signals as were reasonable and proper for the operation of its road, and, if the injury and loss to the plaintiff happened in consequence of the giving of such signals by the servants of the defendant under circumstances which justified them in so doing, then, as the court instructed the jury, the plaintiff had no right of recovery. Favor v. Railroad Co., 114 Mass. 350; Lamb v. Railroad Co., 140 Mass. 79, 2 N.E. 932; Howard v. Railroad Co., 156 Mass. 159, 30 N.E. 479. But a signal may be reasonable and proper in itself, and yet the circumstances may be such that it would be negligence on the part of the defendant's servants to use it, and due care might require that the object to be accomplished by the giving of it should be reached in some other manner. It is not for the defendant to establish a signal, however reasonable and proper in itself, and say to its servants this may be given under any and all circumstances, regardless of consequences. The engineer and conductor were not bound before giving the signal to look and see if there were any persons on the highway, and the defendant is not liable for the damages which a traveler or a teamster on a highway in close proximity to a railroad may sustain...