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

• Decision Date: 20 December 1930
• Citation: 174 N.E. 171,273 Mass. 522
• Parties: LIBBY v. NEW YORK, N. H. & H. R. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 522

174 N.E. 171

LIBBY

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

Supreme Judicial Court of Massachusetts, Barnstable.

Dec. 20, 1930.

Exceptions from Superior Court, Barnstable County; Whiting, Judge.

Separate actions by Avira E. Libby, administratrix, and by Edith G. Libby, administratrix, against the New York, New Haven & Hartford Railroad Company. On defendant's exceptions after verdicts.

Exceptions sustained, and judgment for defendant.G. Alpert and J. P. Feeney, both of Boston, for plaintiffs.

M. G. Gonterman, of Boston, for defendant.

CROSBY, J.

These are actions of tort to recover for the death of the plaintiff's intestate in each case and for the conscious suffering of the intestate in the second case, as the result of a collision between an automobile and a railroad motor car at a railroad crossing at grade on Hyannis road, a public highway in Barnstable in this commonwealth. The jury returned verdicts for the plaintiffs, and the cases are before us on exceptions saved by the defendant.

The railroad track at the crossing runs east and west and Hyannis road runs north and south. The accident occurred about 9:15 p. m. on February 23, 1927. The railroad motor car is also referred to in the record as a ‘gasoline rail car’ and a ‘gasoline bus.’ It was operated by gasoline, and there was evidence tending to show the following facts: It was between forty and forty-five feet long and was operated upon the same principle as an ordinary automobile. It was equipped with a hand brake, an air brake, a wind shield wiper, and a bell located on the roof at the front end of the car. There was a headlight on the front, and other lights on the front and rear ends. There was a whistle on the roof, made of brass and sounded by air, which was much the same as a horn on an automobile, and it was controlled from the inside of the car where the operator sits. The car had seats for passengers and a baggage compartment; it was not equipped for drawing other cars, but merely for its own operation, and on the night of the accident was not carrying any passengers. The night of the collision was dark and misty and the wind shield wiper was working. The car at that time was being operated by a locomotive engineer in the employ of the defendant and the only person with him was a flagman.

There was evidence that the automobile in which the plaintiffs' intestates were riding at the time of the collision was operated by one Smith; that it was a misty night and had been raining, and as Smith came to a place in the road which obscured a view of the railroad he put his car into second speed and reduced the speed to ten or twelve miles an hour, and as he approached the crossing he was traveling at about seven or eight miles an hour; that at no time did he hear a whistle or bell of an engine or locomotive, nor was his attention directed by either of the intestates to the blowing of a whistle or the ringing of a bell; that there was nothing said by either of the intestates; that he was familiar with the crossing and knew there were no trains scheduled at that time or after six o'clock at night; that as he got very close to the crossing he heard neither a bell nor a whistle, but as he was about on the track he noticed ‘a glimmer of light’ and then almost instantaneously the collision occurred; that the window on the left side of the automobile was open; that his brakes were in good condition, and the lights were on at the time; that the intestates were sitting on the seat with him and that there was room enough for all of them. There was evidence that the plaintiff's intestate in the first case was rendered unconscious by the collision and died without regaining consciousness at 5 p. m. the following day, and that the intestate in the second case was conscious after the accident and died about 11:30 p. m. the same night.

The counts upon which both cases were submitted to the jury were based on G. L. c. 160, § 138, for failure to give the statutory signals. All other counts in the declarations were waived by the plaintiffs respectively. At the close of the evidence the defendant moved in each case that a verdict be directed in its favor. These motions were denied subject to the defendant's exceptions. The defendant also requested the judge to give certain rulings, which were refused, and its exceptions to such refusal were duly saved. The eleventh and fifteenth requests were as follows: ‘Upon all the law and the evidence, the defendant in the operation of the railroad motor car involved in the collision was under no statutory duty to give the signals prescribed in G. L. c. 160, § 138’; and ‘the evidence is insufficient to warrant a finding of negligence of the defendant contributing to the collision as alleged in the ‘7th’ and ‘8th’ counts of the plaintiffs' declarations.'

G. L. c. 160, § 232, upon which these actions are brought, provides in part that ‘if a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing such as is described in section one hundred and thirty-eight, and it appears that the corporation neglected to give the signals required by said section, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision * * * or, if the life of a person so injured is lost, to damages recoverable in tort, as provided in said section three, unless it is shown that, in addition to a mere want of ordinary care, the person injured or the person who had charge of his person or property was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury.’

It is plain that, unless the ‘railroad motor car,’ however otherwise described, comes within the description of the words ‘engines or cars' set forth in G. L. c. 160, § 232, these actions cannot be maintained. For nearly sixty years these words have been re-enacted in the various amendments and revisions of the statutes without change. St. 1871, c. 352; St. 1874, c. 372, § 164; Pub. St. 1882, c. 112, § 213; R. L. c. 111, § 268; St. 1906, c. 463, pt. 2, § 245. Section 138 was enacted in its original form in 1835. G. L. c. 160, § 232, is in its nature a penal statute. Duggan v. Bay State Street Railway, 230 Mass. 370, 376, 119 N. E. 757, L. R....