Hubbard v. Boston & A.R. Co.

• Decision Date: 17 October 1894
• Parties: HUBBARD v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 132
38 N.E. 366

HUBBARD
v.
BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts.

Oct. 17, 1894.

Exceptions from superior court, Berkshire county; J.B. Richardson, Judge.

Action by Caroline M. Hubbard, executrix, against the Boston & Albany Railroad Company, to recover damages for injuries causing the death of William L. Hubbard. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

A.J. Waterman and John [162 Mass. 133]F. Noxon, for plaintiff.

M. Wilcox and C.E. Hibbard, for defendant.

KNOWLTON, J.

This bill of exceptions presents two questions: First, whether there was evidence that the plaintiff's testator was in the exercise of due care; secondly, whether there was evidence of negligence on the part of the defendant in failing to provide a gate or a flagman at the crossing to warn travelers of the approach of trains. The place where the accident happened was exceedingly dangerous. The railroad at that

[38 N.E. 367]

point runs nearly northeast and southwest, and the plaintiff's testator was driving northerly on the highway, which crosses the railroad at an angle of 40 degrees. On the westerly side of the highway, extending up to within nine feet of the southerly track, is a ledge of rocks, such as to make it impossible for a traveler going northward on the [162 Mass. 134]highway to see a train approaching from the west until he gets almost to the crossing. The testimony shows that a person standing in the highway 20 feet south of the south rail, looking westerly across the north end of the ledge of rocks, could see 159 feet of the track next west of the crossing, and one standing 15 feet south of the south rail could see 350 feet of the track next west of the crossing. From that point to a point more than 100 feet southerly of the southerly track, and for the greater part of the way to a point 300 feet southerly, no part of the tracks to the westward could be seen. A long freight train was passing over the crossing to the westward on the northerly track, and the plaintiff's testator, who was driving in a lumber wagon, stopped his horse about 100 feet southerly of the southerly track, and waited for it to go by. Soon after the last car had gone over the crossing, he started at a slow trot to go across. He was standing in his wagon, looking to the westward, but on account of the obstructions it was impossible for him to see the train approaching from that direction. The intervening ledge may have somewhat interfered with the passage...