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

• Decision Date: 21 October 1897
• Citation: 47 N.E. 1009,169 Mass. 338
• Parties: LAMOUREUX v. NEW YORK, N.H. & H.R. CO. (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 338

47 N.E. 1009

LAMOUREUX v. NEW YORK, N.H. & H.R. CO. (three cases).

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1897

COUNSEL

Herbert Parker, C.C. Milton, and A. Auger, for plaintiff.

Frank P. Goulding and Wm. C. Mellish, for defendant.

OPINION

HOLMES J.

These are actions of tort, brought under Pub.St. c. 112, § 213, for causing the death of the plaintiff's intestates by failing to give the signals required by section 163. The plaintiff has had verdicts, and the cases are here on exceptions. We take up the questions as they were argued for the defendant.

1. It is urged, in the first place, that there is no evidence that the train which killed the deceased did not ring its bell or sound its whistle. But we think it too plain to need discussion that the evidence was sufficient. A witness testified that "what took my attention was, the train came along, and there wasn't any whistle or sound from the train; and I says to myself, 'That's funny.' " Even without the last words, which were admissible as a sign of attention, this means that the silence of the bell and whistle attracted the witness' notice, and not merely that she did not observe them. The witness further testified "It didn't whistle or ring, and I sat there right along until I heard a noise;" and the noise was explained as one which happened after the accident. We see no ground for doubting that the witness' testimony to her attention was meant to include the whole time covered by her statement of fact. Other parts of her testimony, tending to show inattention, cannot obliterate what she said on this point. The same witness testified that she heard no electric gong or other sound of warning during the same time.

2. If the signals were not sounded, the jury might infer that the absence of them caused the accident. The deceased Alfred Lamoureux was seen driving at a trot a mile and a half from the station, and then was awake, as he turned to one side to let the witness pass. The train was an extra train, which there was no reason to expect beyond the general possibility. It was open to the jury to infer that the witness was awake when he drove upon the track at the crossing, and that, if there had been a signal, he would have acted as men commonly do when they know that a train is approaching. Doyle v Railroad Co., 145 Mass. 386, 388, 14 N.E. 461; Johanson v. Railroad Co., 153 Mass. 57, 59, 26 N.E. 426.

3. The plaintiff, in cross-examination of one of the defendant's witnesses, put in a conviction of crime to discredit him. Pub.St. c. 169, § 19. Upon redirect examination the witness was asked to state the circumstances, the evidence being offered to show the extent of the wickedness involved in the act, and to show the circumstances. This evidence was excluded. Logically, there is no doubt that evidence tending to diminish the wickedness of the act, like evidence of good character, which is admissible, does meet, as far as it...