Hubbard v. Boston & A.R. Co.
| Decision Date | 17 October 1894 |
| Citation | 162 Mass. 132,38 N.E. 366 |
| Parties | HUBBARD v. BOSTON & A.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.J. Waterman and John F. Noxon, for plaintiff.
M Wilcox and C.E. Hibbard, for defendant.
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 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 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 of sound of the coming train, and there was doubtless noise from the receding freight cars; so that, while the evidence tends to show that he both looked and listened, he was evidently unaware of the approach of the express train from the west until his horse was on, or very near, the track. The jury might well have found that he was negligent in not waiting longer before starting after the freight train went by, so that he could more effectually use his ears in a place where his eyes could not avail him. On the other hand, there is much to excuse, if not to justify, his conduct. Very likely it was his first experience of the passage of a long train before him when he was about to cross a railroad. He may have supposed that he would hear the coming train if it was near. Waiting longer in that place would not have enabled him to see whether a train was coming. To have have stopped near enough to the track to be able to see along it for any considerable distance would have brought his horse so near as to expose him to great danger from the fright of the horse if a train should chance to come. Under the circumstances of this case we cannot say as a matter of law that he was negligent, but we are of opinion that it was for the jury to determine whether he was in the exercise of reasonable care.
While the case of Fletcher v. Railroad Co., 149 Mass. 127 21 N.E. 302, resembles this in some particulars, in others it materially differs from it. There the plaintiff drove upon the track without excuse when his view of...
To continue reading
Request your trial