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

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: KNOWLTON, J.
• Citation: Hicks v. New York, N.H. & H.R. Co., 164 Mass. 424, 41 N.E. 721 (Mass. 1895)
• Decision Date: 17 October 1895
• Parties: HICKS v. NEW YORK, N.H. & H.R. CO. (two cases).

164 Mass. 424

41 N.E. 721

HICKS v. NEW YORK, N.H. & H.R. CO. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

October 17, 1895

COUNSEL

W.S.B Hopkins, Webster Thayer, and Hollis W. Cobb, for plaintiff.

Frank P. Goulding and Chas. F. Choate, Jr., for defendant.

OPINION

KNOWLTON J.

The presiding justice could not properly direct a verdict for the defendant in either of these cases. There was evidence in favor of the plaintiff upon the question whether he was in the exercise of due care. The evidence tended to show that the crossing on which he was injured was very dangerous. As the highway and the railroad approach each other going northward, towards the crossing, they run for a considerable distance almost in the same direction, and a part of the way a house and other objects make it impossible for a traveler on the highway to see a coming train. The civil engineer called by the defendant testified that at a point southerly on the highway 100 feet from the nearest rail, as you approach the crossing, you can see down the track, to the southward, 500 feet, and that at a point 50 feet further from the crossing, for a distance of 300 feet the view of the track is obstructed by the house and a hill. The plaintiff testified that he stopped about 150 feet from the crossing, and looked to see if a train was approaching and saw none, and listened, and heard none; that he then drove on, and was struck by the locomotive. It appeared that he knew that the crossing was equipped with electric bells, to warn travelers of the approach of trains, and he testified that the bells were not ringing. His testimony upon the question whether he looked after starting onward was indefinite, and somewhat contradictory. It appeared that, if he had continued looking, he could have seen the train before reaching the crossing. The locomotive engineer testified that the train was then running at the rate of a little more than 40 miles an hour. The plaintiff and his wife, sitting on chairs, were riding in a large, covered gypsy wagon, with a leather top, which extended forward to the front of the wagon, and which had in it large windows, of clear glass, in the sides, right opposite the chairs, and another window in the rear. He testified that he was driving at about four or five miles an hour. Under these circumstances, it cannot be said, as a matter of law, that the plaintiff was not in the exercise of due care. He was quite near the crossing when he stopped and looked and listened. His conduct after he started forward might properly be affected, to some degree, by the fact that the electric bells were not ringing. There was more or less difficulty in seeing, from his seat in the wagon, as he drove along, whether a train was coming on his left, from behind him, and the care of his horses necessarily occupied some of his attention. We think the case was properly left to the jury, to determine whether he exercised such care as ordinarily persons are accustomed to exercise under like circumstances.

The speed at which a train may be run, without negligence, depends upon the dangers attendant upon running it. Upon a good road, with proper equipments, over which there are no crossings where persons are liable to be in peril, it may safely be run very fast; but in a thickly-settled town, where there are frequent grade crossing of streets, at which the view of the track on each side is obstructes by houses, it would be negligent to run rapidly. In view of the nature of this crossing, and the amount of travel over the highway, of which the jury could judge somewhat from their view, we cannot say that the circumstances of the accident, the distance which the train went before it was stopped, and the testimony of the engineer, did not furnish evidence from which the jury might have found that the train was running faster than was reasonable at that place. For the same reasons, in view of the evidence indicating the rate of speed at which the defendant was accustomed to run trains there, we are unable to say that there was no evidence from which the jury might have found that it was the duty of the defendant to place a flag, gates, or other guards at the crossing. Hubbard v. Railroad Co., 162 Mass. 132, 38 N.E. 366; Eaton v. Railroad, 129 Mass. 364. If trains are to be run at great speed, proper precautions must be taken for the protection of travelers at peculiarly dangerous crossings of highways. With such precautions, the rapidity of passing trains will not, alone, constitute negligence.

It cannot be said that the failure of the electric bells to ring at the approach of the train was not evidence of negligence of the corporation. The request to rule to that effect was made in the case of the plaintiff suing personally, and in that action the defendant was liable for the negligence of its servants, to the same extent as for its own. The evidence tended to show that, if the apparatus had been kept in proper condition, the bells would have rung as the train approached. Their unexplained failure to ring was therefore some evidence of negligence on the part of the corporation or its servants. White v. Railroad Co., 144 Mass. 404, 11 N.E. 552; Mahoney v. Railroad Co., 160 Mass. 573, 36 N.E. 588; Hennessy v. City of Boston, 161 Mass. 502, 37 N.E. 668.

The evidence in regard to the care of the boy of 10 years of age who was driving the pony team immediately behind the plaintiff's wagon, is very slight, but we...