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

• Decision Date: 02 April 1931
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JONES v. NEW YORK, N. H. & H. R. CO. LEAMAN v. SAME.

275 Mass. 139

175 N.E. 487

JONES

v.NEW YORK, N. H. & H. R. CO.

LEAMAN

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1931.

Exceptions from Superior Court, Suffolk County; Beaudreau, Judge.

Actions by Margaret Jones and by Minnie Leaman against the New York, New Haven & Hartford Railroad Company. Verdicts for plaintiffs, and defendant brings exceptions.

Exceptions sustained.G. R. Farnum, of Boston, and J. J. O'Neill, of Milton, for plaintiffs.

E. J. Phillips and H. Lawlor, both of Boston, for defendant.

RUGG, C. J.

These are actions of tort to recover compensation for personal injuries sustained by the plaintiffs as a result of a collision between an automobile, in which they were riding, and a passenger train of the defendant, at a railroad grade crossing of a public way at about dusk of an October afternoon. The actions are at common law and the grade crossing statute, G. L. c. 160, was 232, is not involved.

The causative negligence of the defendant alleged in each declaration is careless operation and propulsion of the locomotive, without proper notice and safeguards, against the plaintiff. Evidence was admitted without objection tending to show that the causative negligence of the defendant was conduct of its crossing tender. No question of variance between allegation and proof was raised. The cases will therefore be considered, as they have been argued, on the footing whether on all the evidence the plaintiffs were entitled to go to the jury. Any insufficiency in pleading might have been cured by amendment. Pizer v. Hunt, 253 Mass. 321, 331, 332, 148 N. E. 801.

The plaintiffs, who were sisters, were familiar with the grade crossing and had been over it many times. The automobile was being driven by the plaintiff Margaret Jones. Her testimony, so far as material to the grounds of this decision, was in effect that on approaching the crossing she observed the train standing still at the station and that she then proceeded slowly until within about fifteen feet of the crossing, when she stopped and again noticed the stationary train; that she then saw a man who appeared to be a gateman or flagman standing a little way from the shanty, and that he came from the shanty toward the tracks and ‘was standing there talking to a man on the tracks' a little to her right, the train and station being on her left; that, after she came to a stop, the engine of her automobile still running, the flagman gave her a beckoning signal with arm and hand to come on; that, without first looking again to her left, she started across, then looked to her left, saw the train ‘almost on top of her’ when the front wheels of her automobile were on the track, heard a loud blast and became unconscious. The train was proceeding on the track nearest to the plaintiffs as they approached the crossing. The testimony of the other plaintiff was corroborative of the narrative already summarized. These two were the only eyewitnesses of the accident who testified in behalf of the plaintiffs.

The defendant called an array of witnesses, who gave an entirely different description of the accident so far as concerned its vital features. It is not necessary to summarize this testimony because it is familiar law that it is not our province to weigh testimony on exceptions, but the evidence must be considered by this court after verdict in its aspect most favorable to the prevailing party.

Motions for directed verdicts in favor of the defendant and certain of its requests for rulings were denied. Exceptions were saved to these denials and to portions of the charge inconsistent with the requests.

No discussion is required to demonstrate that, if the testimony of the two plaintiffs be believed, there was negligence on the part of the flagman in inviting the plaintiffs into a place on the tracks of the defendant which he must or should have known to be one of imminent peril. Reliance upon the conduct of the flagman by the plaintiffs would also have warranted a finding of due care on the part of the plaintiffs in view of their testimony to the effect that but a moment earlier they had seen the train standing still at the station. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, 87 Am. Dec. 644;Johanson v. Boston & Maine Railroad, 153 Mass. 57, 60, 26 N. E. 426;Sullivan v. Boston & Maine Railroad, 242 Mass. 188, 192, 193, 136 N. E. 373, and cases cited.

The plaintiff who was not driving the automobile, having testified that she relied on her sister to look out for her, was entitled to recover if that sister was found to be in the exercise of due care. Shultz v. Old Colony Street Railway, 193 Mass. 309, 323, 79 N. E. 873,8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502,9 Ann. Cas. 402.

It follows that the motions for directed verdicts in favor of the defendant were denied rightly:

The defendant requested the ruling that, if the plaintiff Margaret Jones failed to proceed cautiously over the crossing, she was acting in violation of law and, if such violation contributed to the collision, she is not entitled to recover. This request is based on G. L. c. 90, § 15, whereby it is required that one ‘operating a motor vehicle, upon approaching a railroad crossing at grade, shall reduce the speed of the vehicle to a reasonable and proper rate, and shall proceed cautiously over the crossing,’ with penalty for violation. There was testimony introduced on behalf of the defendant which, if believed, tended to show that the driver of the motor vehicle did not ‘proceed cautiously’ in going upon the crossing. The trial judge refused to give this ruling. He read the statute to the jury and said that it applied to the plaintiffs, and that whether Margaret Jones was cautious in approaching the...