La Fond v. Boston & M.R.r.
| Decision Date | 03 April 1911 |
| Parties | LA FOND v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank E. Bradbury, for plaintiff.
Trull & Wier, for defendant.
The defendant admits that there was evidence which would have justified a finding that the bell was not rung and the whistle was not sounded upon the engine of the train which struck and killed the plaintiff's intestate. St. 1906, c 463, pt. 2, §§ 147, 245. The jury could have found that the failure to give these signals contributed to the happening of the accident, even though the intestate was somewhat deaf. Doyle v. Boston & Albany R. R., 145 Mass. 386, 14 N.E. 461; Walsh v. Boston & Maine R. R., 171 Mass 52, 58, 50 N.E. 453; Brusseau v. N. Y., N.H. & H. R R., 187 Mass. 84, 72 N.E. 348. Upon these findings the plaintiff would be entitled to recover, unless the defendant sustained the burden of showing that the intestate, in addition to a mere want of ordinary care, was guilty of gross or willful negligence which contributed to his injury. Manley v. Boston & Maine R. R., 159 Mass. 493, 34 N.E. 951; Walsh v. Boston & Maine R. R., 171 Mass. 52, 50 N.E. 453; Phelps v. New England R. R., 172 Mass. 98, 51 N.E. 522; McDonald v. New York Central & Hudson River R. R., 186 Mass. 474, 72 N.E. 55.
As has been pointed out by this court, it is not often, in the absence of binding admissions or agreements as to facts, that a court can rule as matter of law that a material fact has been affirmatively proved. Kelsall v. N. Y., N.H. & H. R. R., 196 Mass. 554, 82 N.E. 674; Kenny v. Boston & Maine R. R., 188 Mass. 127, 74 N.E. 309; Brusseau v. N. Y., N.H. & H. R. R., 187 Mass. 84, 72 N.E. 348. In the first of these cases this rule was declared, and it was shown that the decisions in Debbins v. Old Colony R. R., 154 Mass. 402, 28 N.E. 274, and Emery v. Boston & Maine R. R., 173 Mass. 136, 53 N.E. 278, cannot be regarded as at variance with it. See, also, Slattery v. N. Y., N.H. & H. R. R., 203 Mass. 453, 89 N.E. 622, 133 Am. St. Rep. 311.
In the case at bar, as in others of the cases cited, the jury no doubt could have found that the intestate was guilty of gross negligence; but we cannot say that this was made out as matter of law. It is true that the gates were down when he started to cross the tracks; but the line of his approach was inside that of the gates, and it was not shown that he was aware of their position. If he did know it, he might have supposed that the gates were closed merely on account of the arrival of the train which he had just left, and were kept closed until that train should have departed, as the gateman testified would be done when a train extended (as this one did) over a part of the plank walk. The jury could have found also that there was an established practice on the part of the defendant not to have an express train go past the station while a local train was discharging passengers, and that the intestate from his long familiarity with the locality knew of this practice. This evidence was excepted to by the defendant; but it was competent, not only as to the defendant's negligence, but also upon the issue of his care. Floytrup v. Boston & Maine R. R., 163 Mass 152, 39 N.E. 797. The jury might have found the custom to have been a practical construction of the defendant's rule which was in evidence, on which the intestate had a right to rely. Santore v. New York Central & Hudson River R. R., 203 Mass. 437, 444, 89 N.E. 619. That differentiates the case at bar from Connolly v. New York & New England R. R., 158 Mass. 8, 32 N.E. 937. The fact which also could be found that he had passed by the gateman just outside the gate before stepping upon the track without then receiving any warning or intimation of danger had, in connection with the other evidence, a bearing upon the issue of his gross negligence. It did not appear that he then saw the express train...
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