Gannett v. Boston & M.R.R.

• Decision Date: 07 March 1921
• Citation: 238 Mass. 125,130 N.E. 183
• Parties: GANNETT v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 125

130 N.E. 183

GANNETT

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1921.

Report from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Action by Annie Gannett against the Boston & Maine Railroad. Verdict for plaintiff, and case reported. New trial granted.

Francis Juggins, Lafayette R. Chamberlin, and Thomas L. Gannon, all of Boston, for plaintiff.

Henry F. Hurlburt and Albert W. Rockwood, both of Boston, for defendant.

CROSBY, J.

This is an action of tort to recover for personal injuries, received by the plaintiff, as the result of a collision between a wagon, in which she was riding with one Langmaid, and a train operated by the defendant, at a grade crossing in the town of Chichester, N. H.

The circumstances of the plaintiff's injuries briefly stated are as follows: She was spending her vacation at Pittsfield, N. H., and on September 18, 1917, the date of the accident, she took the noon train from Webster's Mills, a small station near Pittsfield, for Chichester, about three miles distant, to visit Mrs. Langmaid. The latter met her at the station and they drove to Mrs. Langmaid's home about a mile and a half away. In the evening at about 7:30 o'clock Mr. Langmaid took the plaintiff in his team, intending to drive back to the station, where she expected to take a train, due to arrive at 7:52 o'clock, to return to Webster's Mills. There was evidence that it was a dark night and that the wagon had a dash lantern on it; that in going toward the station they passed over a bridge a little less than an eighth of a mile from the crossing; that soon after passing this bridge, aside from the darkness of the night, there was an unobstructed view of the railroad track to the right of the highway. The track ran in a northerly and southerly direction, and the highway ran east and west. The team approached the crossing from the west, while the train which collided with it came from the south.

The plaintiff testified that she knew she was approaching the crossing and would have to pass over it to reach the station; that she first saw the headlight on the engine when it was 75 to 100 feet away; that at that time she was about 8 or 10 feet from the crossing; that she knew there was a train due about that time; that it was very dark; that when she saw the light she said to Mr. Langmaid, ‘Why, is that our train?’ and that he then hit the horse with the whip, and ‘in one instant’ the collision occurred. She further testified that when the horse was struck with the whip they were travelling at the rate of about 6 miles an hour, and that thereafter the horse went a little faster. On cross-examination she testified that when the horse was struck by Langmaid they were ‘about 15 feet, as near as she could judge, or she should say 8 to 10 or 12 feet from the crossing,’ and that she did not hear the whistle sound or the bell ring as the engine approached the crossing. The deposition of Langmaid was read to the jury; in it he testified on direct examination in part as follows: That he was listening for the approach of the train; that he did not hear the whistle or the bell; that when he first saw the train it might have been 2 or 3 rods from them, and they were about on the track; that he knew a train was due about that time. On cross-examination he testified that the train was about 2 rods from him when he heard it; that when the horse was on the crossing he saw a black object about a rod and a half from him, and that the horse got off the track and the wagon was struck between the front and rear wheels. The train which the plaintiff intended to take was the one with which the wagon came into collision. The plaintiff and Langmaid testified that their eyesight and hearing were good. Several witnesses testified that they were listening as this train approached the crossing, and heard the sound of the whistle and the bell.

As the cause of action arose in New Hampshire, the rights of the parties are to be determined by the law of that state. Pub. Sts. N. H. c. 159, § 6, as amended by Laws 1917, c. 48, were in evidence, and provide that--

‘Whenever a locomotive approaches within 80 rods of a grade crossing over a highway, two long and two short whistles immediately following each other shall be given, and the bell shall be rung until the locomotive has passed the crossing. * * *’

The case was submitted to the jury, who returned a verdict for the plaintiff, and answered three special questions propounded to them by the court; the questions and answers are as follows:

‘1. Were the signals given by the engineer and fireman practically as required by statute? The jury answer: Yes.

‘2. In the exercise of reasonable care should the engineer and fireman have seen the wagon in time to avoid the accident by slacking the speed of the train or stopping it? The jury answer: Yes.

‘3. Was there negligence on the part of the plaintiff which contributed to her injury? The jury answer: No.’

The jury having found that the statutory signals were given, the question remains whether the evidence warranted a verdict for the plaintiff. The engineer testified that when the engine was about over the crossing a horse came out on the right-hand side of the track, and that that was the first he knew of accident; that he immediately pushed the brake into emergency, and stopped the train as quickly as he could; that as he approached the crossing he was travelling at a speed of about 25 miles an hour, and when he came onto the crossing the train was running at a speed of about 6 or 7 miles an hour. The fireman testified that as the train approached the crossing he was sitting on the left-hand side of the engine cab pulling the bell cord with his right hand and looking out the front window; that the rays of the headlight shone on the crossing; that he was looking straight ahead until he heard the crash; and that it was dark and he did not see...