Fortune v. New York, N.H.&H.R. Co.

• Citation: 170 N.E. 923,271 Mass. 101
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 02 April 1930
• Parties: FORTUNE v. NEW YORK, N. H. & H. R. CO.

271 Mass. 101

170 N.E. 923

FORTUNE

v.NEW YORK, N. H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Barnstable.

April 2, 1930.

Exceptions from Superior Court, Barnstable County; E. T. Broadhurst, Judge.

Action by John Fortune against the New York, New Haven & Hartford Railroad Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained; judgment for defendant.

J. M. Graham, of Boston, for plaintiff.

M. G. Gonterman, of Boston, for defendant.

WAIT, T.

The evidence would sustain findings as follows: The plaintiff, after driving from a nearby pond, to the street and along Cedar Pond Road toward the crossing, stopped to cover his load. Before driving on, he walked toward the crossing and looked in both directions along the single track roadbed to see if any train were approaching. To his right and rear he could see the track for about five hundred feet, while to the left and front he could see it for a mile or more when at his nearest approach to the crossing, and for at least one thousand and forty-six feet throughout the course of his walk. He saw no train. On returning, he started slowly with considerable noise toward the crossing, then increased his speed, slowing as he reached the track and looking toward his right where, beyond the track, he had to make a somewhat sharp descent on a rough roadway to turn to his right from Cedar Pond Road to Railroad Avenue along which he was to proceed toward Boston. His view to the left was through the celluloid windows of a canvas door which was drawn down. When nearly across the track he looked for the first time to the left, and saw the train almost upon him. Although he was listening, he had not heard the train or any signals from it. The truck was hit about in the middle, but near the rear left wheel. The train was running at between thirty-five and forty miles per hour. This would mean that it would pass from the whistling post to Hurd's Crossing in from twenty-two to twenty-five seconds, and to the crossing from the farthest point from which it could have been seen by the plaintiff on his walk toward the track in about two minutes. The jury well might conclude that no train was in sight when the plaintiff looked as he stook in the road. The testimony that he did not look again to the left until he was upon the crossing comes from the plaintiff himself. He is bound by it. Sullivan v. Boston Elevated Railway, 224 Mass. 405, 112 N. E. 1025;Will v. Boston Elevated Railway, 247 Mass. 250, 142 N. E. 44;Creeley v. Boston & Maine Railroad, 263 Mass. 529, 533, 161 N. E. 584.

For the purposes of this decision it is assumed in favor of the plaintiff that there was evidence to support a finding that the statutory train signals required by G. L. c. 160, § 138, were not given and that it could not have been ruled as matter of law that the defendant had sustained the burden of proving that the plaintiff was guilty of gross or willful negligence...