Hunt v. Boston & M.R. Co.
Decision Date | 10 January 1925 |
Citation | 250 Mass. 434,146 N.E. 30 |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Parties | HUNT et al. v. BOSTON & M. R. CO. |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.
Action of tort by Agnes Hunt and others against the Boston & Maine Railroad Company to recover for automobile destroyed at crossing. Verdict was directed for defendant, and plaintiffs except. Exceptions sustained.M. E. Couch, of North Adams, for plaintiffs.
A. W. Rockwood, of Boston, for defendant.
This is an action of tort to recover damages to a registered automobile, owned by the plaintiffs, which, they allege, were caused by the negligent driving of an engine and freight train by the servants of the defendant against the automobile while it was stalled on the tracks of the defendant's railroad; which tracks were within the location of the railroad and crossed a public highway at grade. On a motion of the defendant at the close of the evidence for the plaintiffs, the presiding judge directed a verdict for the defendant, and the case is here upon the plaintiffs' exceptions thereto.
In its aspect most favorable to the contention of the plaintiffs, the testimony disclosed by the record would have warranted the jury in finding the following facts: On December 13, 1920, after dark, at about 5:30 in the afternoon, a daughter of one of the owners of the automobile, having an operator's license, with the permission of the owners, in the course of an intended excursion from North Adams to Williamstown drove the automobile onto River street where it leads to the south, at grade, over the tracks of the defendant's railroad to a small wooden bridge which is a part of a public highway. This public highway crossing was planked 30 feet wide on the north side and 20 feet wide on the south side where the way over the crossing connected with the highway leading over a bridge distant 16 feet south of the southerly rail of the railroad. The bridge had a planking of 15 feet serviceable for travel. The west side of the planking of the crossing was not in line with the west side of the planking of the bridge, and, projected, would come about 5 feet east of the west side of the traveled part of the highway bridge. At the crossing the tracks ran approximately east and west and River street approximately north and south. There were three tracks; the most northerly a siding or spur track leading into a place of business, the middle one was the westbound main track, and the third was the east-bound main track. To the east of the crossing the tracks were straight for a distance of 3,940 feet ‘with somewhat of a down grade.’ The railroad station is about 750 feet to the east of the crossing. At the northwest corner of the bridge, on the southerly side of the crossing, was the crossing tender's shanty; a flagman or crossing watchman being maintained at the crossing by the defendant.
The automobile was a five-passenger Paige touring car; the top was up but the curtains were not on the sides. The driver sat on the left-hand side with a companion on the right-hand side. The automobile was a self-starter and had chains on its rear wheels. It had snowed early in the afternoon and the roadway was wet. As the automobile approached the crossing on the north side going south its headlights were lighted and it was going 8 or 10 miles an hour. The driver looked to see if the flagman was there as she drove up a little grade to the crossing; he was not there; the bell was not ringing; she looked up the track toward North Adams and down the track toward Williamstown and the bridge straight away 1,350 feet distant. There was no train in sight. In consequence of not seeing the flagman she shifted into second gear before coming to the crossing. She saw that the dirt had worn away from the planking and that the rail was 4 or 5 inches above it. In consequence she drove cautiously upon the crossing. Just as she was going over the north track (the first track) the rear wheel of the automobile struck the rail with a jar. When the chain hit the rail ‘it caused the car to skid and it began to spin.’ It skidded to the right and the driver turned the wheel to the right, with slight pressure on the brake to stop the skidding, but so hard that it stalled the engine.
When the engine stalled the front wheel had run off the crossing. The right front wheel was just off the planking, up against the south rail of the east-bound or southerly track. The right front tire rested on the ground within an inch or two of the end of the planking, 3 or 4 inches below the top of the planking and against the south rail...
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