Hamblin v. New York, N.H. & H.R. Co.
| Decision Date | 15 May 1907 |
| Citation | 195 Mass. 555,81 N.E. 258 |
| Parties | HAMBLIN v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas H. Buttimer, for plaintiff.
Choate Hall & Stewart, for defendant.
This is an action of tort to recover damages for the death of John H Hamblin, which occurred at a highway grade crossing with the tracks of the defendant. The deceased was driving a low-down milk wagon, inclosed with glass windows on ends and sides and a sliding door on each side. He was familiar with the crossing, and knew that a regular train was due at about the time of the accident. The view of the tracks in either direction to the traveler approaching was somewhat obstructed, until within about 35 feet of the tracks, whence to the rails there was an unobstructed view of 1 3/4 miles toward Attleboro station, from which direction the train came which killed the intestate. There were no gates at the crossing, but a flagman was stationed there day and night. The morning was dark and foggy, and it was not daylight at the time of the accident. There was in the wagon with the deceased a boy, who described the circumstances attending the accident, in substance, as follows: As they approached the crossing, the horse going at a walk, they looked down the tracks toward the Attleboro station, and saw a light which both thought was at the station. They did not see the flagman, nor did they hear any bell, whistle or warning, After seeing the light, the horse did not jog along, but walked a little bit faster, to get across the track. When the wagon was on the second track, the horse, which had just cleared the tracks, stopped and reared up, and began teetering up and down while 'you could count seven.' When the horse stopped they looked down the track, and saw the light of the approaching train. The whip was on the outside of the wagon. Hamblin 'yelled to the horse to go ahead' and tried to open the door (which slid on rollers), but the blanket caught behind the door, and he could only open it far enough to get his hand out about as far as his wrist, and could not reach the whip. Then the flagman came out and 'yelled to the horse to go ahead.' Then the train struck them. The case was sent to the jury on the fifth count of the declaration, which was under Rev. Laws, c. 111, § 268, for failure to give the statutory signals, and verdict was rendered for the defendant. The court directed a verdict for the defendant upon four other counts, all of which necessarily alleged and required proof of due care on the part of the plaintiff's intestate. The case comes up on her exceptions to this direction.
The view of the facts most favorable to the plaintiff's contention falls short of sustaining the burden of showing due care on the part of the deceased. A grade crossing of a highway with a steam railroad is universally recognized as a place of extreme danger, where the traveler's attention must be intelligently and actively directed to looking out for his own safety. He cannot alone rely upon the railroad and its employés to do their duty, but must actually exercise his own faculties of sight and hearing and common sense to care for himself. The deceased, who was driving, approached the crossing with his horse at a walk. He observed a light a mile or more down the track, which in the dimness of fog and darkness he thought was at a station, but though then in a position of safety he did not pause to further investigate. Nor did he open the door or window of his closed milk wagon a vehicle itself likely to produce considerable noise, to listen for the usual crossing signal and the rumble of an approaching train. Without urging his horse out of a walk, he started across the tracks. He was boxed up in a wagon, so that he could...
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