Fogg v. New York, N.H.&H.R.R.

• Citation: 111 N.E. 960,223 Mass. 444
• Parties: FOGG v. NEW YORK, N. H. & H. R. R. (two cases).
• Decision Date: 21 March 1916
• Court: United States State Supreme Judicial Court of Massachusetts

223 Mass. 444

111 N.E. 960

FOGG

v.NEW YORK, N. H. & H. R. R. (two cases).

Supreme Judicial Court of Massachusetts, Plymouth.

March 21, 1916.

Exceptions from Superior Court, Plymouth County; Patrick M. Keating, Judge.

Two actions by Harry T. Fogg, as administrator, against the New York, New Haven & Hartford Railroad. Verdicts for the plaintiff in each case, and defendant excepts. Exceptions sustained.

Lee M. Friedman and Thos. H. Buttimer, both of Boston, and Francis J. Geogan, of Rockland, for plaintiffs.

Frank W. Knowlton and Chas. O. Pengra, both of Boston, for defendant.

CARROLL, J.

Ebenezer T. Fogg and Fannie M. Fogg, husband and wife, were struck and killed by a train of the defendant, at a grade crossing near Kenberma station in the town of Hull, in the afternoon of May 30, 1913. These actions are brought by the administrator to recover for their death.

At this point, the railroad tracks run approximately north and south; the train was going in a northerly direction from Nantasket Beach toward Pemberton. Mr. and Mrs. Fogg, in an automobile driven by Mr. Fogg, approached the crossing from the east or ocean side, along Kenberma street, into which they had turned from Manomet avenue, a street running parallel with and about one hundred and twenty feet east of the tracks. On the south side of Kenberma street and east of the tracks were two houses; the one nearer the tracks was seventy-one feet from the street line and twenty feet from the nearest rail; the other was twenty feet from the street line and fourteen feet from Manomet avenue. Between these two houses, at a point one hundred and six feet from the crossing to a point seventy feet from it, the tracks to the south can be seen. At one hundred and six feet a man could be seen on the tracks at a distance of three hundred and twenty-two feet; at seventy feet a man could be seen fourteen hundred and seventy-eight feet to the south. After passing the point where the nearer house obstructed the view, at a point one hundred feet from the crossing, one hundred and nineteen feet of track were visible, and at fifty feet from the crossing one hundred and ninety-two feet of track could be seen. According to the record, the view of the traveler on Kenberma street, looking south and approaching the crossing from the east, was in no way obstructed except by these two houses. In 1901, Kenberma street was laid out as a public way to the line on each side of the railroad location, no portion of which was included in the lay-out. On a post at the southeast corner of the crossing, facing east, was the sign, ‘Not a public crossing, dangerous.’ This sign had become weather-beaten, and the evidence was conflicting as to the distance it was legible. Another sign on the same post read, ‘No trespassing.’ There was evidence that this sign was not there at the time of the accident. No other signs were at the crossing, and there were no gates or flagman. Before the street was laid out the six-foot platform of the Kenberma station, extending on the east side of the tracks, from what is now Kenberma street, north to Alden street, was constructed by the defendant. North and south bound trains discharged their passengers on the east side. Before the laying out of the street, there was a plank crossing between the tracks. This had been maintained and kept in repair by the defendant up to the time of the accident.

For eight summers Mr. Fogg had traveled on this Nantasket branch railroad. There was evidence that trains ran on an hourly schedule; it was generally understood that all trains stopped at this station. When the intestates were on Manomet avenue, just before turning into Kenberma street, a train passed them in full view, going in the direction of Pemberton. The train which hit the automobile was an express train going at the rate of thirty-five or forty miles an hour, and there was evidence that no signal of its approach by bell or whistle was given. The automobile was going at the rate of from six to twelve miles an hour, and according to the evidence, could have been stopped inside of twice its length, or in about sixteen feet. One witness stated that Mr. Fogg looked toward Pemberton, and when about seventy-five feet from the crossing, he looked toward Nantasket. He then reached down for the brake, but the forward motion of the car was only slightly retarded, the car swinging to the right. Another witness stated that the deceased when fifteen or twenty feet from the track, made some movement; ‘the car seemed to him to gradually slow up a little.’ The action is under St. 1907, c. 392, § 1, and the plaintiff in each case had a verdict.

Was there any evidence of due care of the intestates, sufficient for the consideration of the jury? Mr. Fogg, the driver of the car, was to some extent familiar with this crossing, and just as he turned from the avenue a train left Kenberma station for Pemberton. It was in the afternoon of a clear day, there was nothing to interfere with a view of the tracks to the south except the two houses, and between them for some distance, there was an unobstructed view in this direction. The house nearer the crossing was seventy-one feet from the street line and twenty feet from the track, thus leaving a wide open space across which he could look, without anything to interfere with his view, and a hundred feet from the crossing he could see to the south along the...