Giacomo v. New York, N.H. & H.R. Co.
| Decision Date | 22 June 1907 |
| Citation | 81 N.E. 899,196 Mass. 192 |
| Parties | GIACOMO v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. J. Shaughnessy, for plaintiff.
Choate Hall & Stewart, for defendant.
This is an action of tort for injuries caused to the plaintiff and his horse and wagon by collision with an engine and train on the defendant's railroad, on July 2, 1904, at 11 o'clock in the evening. The declaration contains four counts, the first and third being for damages to the person and the second and fourth for damages to property.
1. As to the second and fourth counts: In these counts, which seem to have been regarded at the trial as counts at common law the acts upon which the plaintiff bases his claim of negligence on the part of the defendant are, first, running the train at a dangerous speed and at a time later than the regular time; second, failing to have an agent at the crossing to close the gates; third, failing to have a flagman to give warning to travelers; and, fourth, failing to give warning from the engine that the train was approaching.
It is not shown that the train was running more than 18 miles an hour. It appeared that the track was straight for a long distance before reaching the crossing, and that for several hundred feet from the crossing the train could easily be seen from the way. There was no evidence of the extent of the use of the crossing over the railroad at that point. Upon the evidence it cannot be said that the speed was unreasonable. Nor is it a proper ground of complaint that the train was running at that time of night. Railroads are very extensively used as well at night as by day.
There was no evidence that the defendant ever had been requested or required to place gates or a flagman at the crossing. In the absence of proof of such request under Rev. Laws, c. 111, §§ 191, 192, the defendant is not shown to have been derelict in any statutory duty with respect to flagman or gates. And the evidence as to the amount of travel upon this way does not warrant a finding that such precautions were necessary for the safety of travelers.
If it be argued that the existence of gates at the crossing and the practice of closing them in the daytime is evidence of the necessity, it also appears that the gates were not used and a flagman was not stationed there after 7 or 8 o'clock in the evening, and the inference from that (if any there be) is that after that time in the evening such precautions were not necessary rather than that they were. Up to this point, therefore, no negligence on the part of the defendant is shown.
If, however, the way was a highway in the sense in which the word is used in Rev. Laws, c. 111, §§ 188, 190, then it was the duty of the defendant to ring the bell or sound the whistle at this crossing, and a failure to observe the statutory requirements in this respect would be of itself evidence of negligence. The evidence as to whether the bell was rung or the whistle sounded was conflicting, as is usual in such cases, and we cannot say as matter of law that it would not have justified a finding in the negative. It therefore becomes necessary to consider whether the way was a highway. There was no direct evidence that the way ever had been laid out by the proper authorities, or that it had become a highway by prescription or by dedication; and it is stoutly contended by the defendant that the evidence would not have warranted a finding that it was a highway. Even if this contention be correct we are of the opinion that that is not fatal to the plaintiff's case. From a perusal of the record it becomes apparent that the case was tried upon the implied admission by the defendant that the way was a highway.
Bigelow the civil engineer called by the plaintiff, was allowed to testify that a plan made by him and introduced by the plaintiff represented the position of the 'highway' and the railroad tracks. He was allowed to point out 'the signal post on the railroad track where the plaintiff was injured.' He testified that 'the highway crosses at grade--that is, the tracks of the railroad and the surface of the highway are on the same level'; that 'as you leave the crossing towards Southborough Center there is a fall in the highway,' and that certain lines upon the plan represented 'shrubbery, or bushes,...
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