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

• Citation: 196 Mass. 554,82 N.E. 674
• Parties: KELSALL v. NEW YORK N.H. & H. R. CO.
• Decision Date: 26 November 1907
• Court: United States State Supreme Judicial Court of Massachusetts

196 Mass. 554

82 N.E. 674

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

Supreme Judicial Court of Massachusetts, Bristol.

November 26, 1907

COUNSEL

John W. Cummings and Jas. T. Cummings, for plaintiff.

Frederick S. Hall and Charles C. Hagerty, for defendant.

OPINION

KNOWLTON C.J.

The exception in this case was to the refusal of the judge to direct a verdict for the defendant. The action is to recover for personal injuries received from a collision of the plaintiff's wagon with an engine drawing a passenger train on the defendant's road, at a crossing of a highway in Fall River.

There was testimony from which the jury might find that the defendant's servants neglected to give the signals required by the statute to be given at railroad crossings. Rev. Laws, c. 111, § 188. If there was neglect in this particular, the jury might infer that it contributed to the injury. Doyle v. Boston & Albany Railroad Co., 145 Mass. 386, 14 N.E. 461.

According to the defendant's contention, it should have been ruled upon the evidence as matter of law, that even if there was a failure to give the required statutory signals, the plaintiff was guilty of gross negligence in attempting to cross the tracks as he did. Under Rev. Laws, c. 111, § 268, which is the section on which the plaintiff relied in presenting his case to the jury, the burden is upon the defendant to prove this proposition, if he would defeat a claim founded upon a failure to ring the bell or blow the whistle at a crossing of a highway.

In the present case there was evidence which well would have warranted the jury in finding the plaintiff guilty of gross negligence, and if the burden had been upon the plaintiff to prove that he was not grossly negligent, perhaps the court might have held that there was not sufficient evidence to justify a finding in his favor. However, we need not consider the question thus raised, for when a party has the burden of establishing a proposition by oral testimony, a court can seldom rule as a matter of law that the proposition is proved. What facts have been established by evidence is ordinarily a question for a jury. Whether certain facts in one's conduct, without inferences from them, constitute negligence, is sometimes a question of law for the court. But where such facts are being proved by evidence, important parts of which may be believed or disbelieved, or where they depend in part upon inferences of fact to be drawn from other facts, they are all for the jury. The difference between cases brought under this section of the statute and those where the question is whether a party who has the burden of proving a proposition has introduced any evidence to warrant an affirmative finding in his favor, was considered in Brusseau v. New York, New Haven & Hartford R. R Co., 187 Mass. 84, 72 N.E. 348, and Kenny v. Boston & Maine Railroad, 188 Mass. 127, 74 N.E. 309. In some cases under this statute, in which it was held that the question was rightly submitted to a jury, the distinction was not referred to in the opinion. Sullivan...