Maguire v. Fitchburg R. Co.
| Decision Date | 05 March 1888 |
| Citation | 15 N.E. 904,146 Mass. 379 |
| Parties | MAGUIRE v. FITCHBURG R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Henry W. Bragg and James A. Maxwell, for plaintiff.
The rule of law is well established that the burden is upon the plaintiff to show that the death of her intestate was caused solely by the negligence of the defendant corporation, and this principle necessarily demands the proof of the absence of contributory negligence on the part of the deceased. "Due care," however, "although in form a proposition to be established affirmatively, is not necessarily to be proved by affirmative testimony addressed directly to its support." Mayo v. Railroad Co., 104 Mass. 140. It is immaterial whether Maguire, at the time he struck, was sweeping grain from the track. Ordinarily, one cannot recover damages for injuries sustained at a railroad crossing, notwithstanding the negligence of the defendant corporation, if the plaintiff failed to look up and down the track before crossing. But where the plaintiff was led to suppose that she was safe in crossing because a train had just passed, and, not having looked up and down the track was struck by some detached cars immediately following, it was held that there was an implied invitation extended to the plaintiff to cross the track, and that she was entitled to recover. French v. Railroad Co., 116 Mass. 537. See also, the dissenting opinion of GRAY, C.J., and MORTON, J in Hinckley v. Railroad Co., 120 Mass. 264; Sonier v. Railroad, 141 Mass. 10, 6 N.E. 84. Plainly, there was a stronger invitation held out to the plaintiff's intestate by the defendant corporation, in the case at bar, to place himself upon the track than in the cases cited. Com. v. Railroad Corp., 126 Mass. 61; Peverly v. Boston, 136 Mass. 366; Smith v. Gas-Light Co., 129 Mass. 318; Lyman v. Hampshire, 140 Mass. 311, 3 N.E. 211. In the case of Crafts v. Boston, 109 Mass. 519, which may be relied upon by the defendant, there was evidence only as to the fact of the accident, and none as to any circumstance consistent with due care on the plaintiff's part. So in Stock v. Wood, 136 Mass. 353. The case at bar is not distinguishable from that of Com. v. Railroad Corp., supra. So it is difficult to distinguish the case at bar from that of Nourse v. Packard, 138 Mass. 307. See, also, Smith v. Gas-Light Co., 129 Mass. 318. Although the English rule as to the burden of proof in actions for negligence differs from that of Massachusetts, the reasoning of Williams v. Railway, L.R. 9 Exch. 157, may well be cited to the plaintiff's position. The case at bar is distinguished from Hinckley v. Railroad Co., supra, by the fact that in the latter case the plaintiff's intestate met his death by his own act. Carefulness might have saved him, but the greatest degree of care and diligence could not have saved Maguire. Such care as an ordinary man acting reasonably would observe may be presumed by a jury to have been exercised in the case at bar, where the defendant, by a sudden collision, put it out of the power of the deceased to act in any available way. The circumstances under which the defendant committed the wrong are the standard by which the plaintiff's actions should be measured. Smith v. Gas-Light Co., supra; Gay v. Winter, 34 Cal. 153; Button v. Railroad Co., 18 N.Y. 248. The courts of other states which observe the Massachusetts rule as to the burden of proof in actions for negligence, take the position contended for by the plaintiff. Button v. Railroad Co., supra; Hart v. Bridge Co., 80 N.Y. 622; Teipel v. Hilsendegen, 44 Mich. 461, 7 N.W. 82; Way v. Railroad Co., 40 Iowa, 345; Buesching v. Gas Co., 39 Amer.Rep. 503-511, note. Fault and negligence are not to be presumed without evidence. Lyndsay v. Railroad Co., 27 Vt. 643. From the position and condition of the body when found, the jury might infer due care, and what he was doing when killed, and the presence of the broom near the body was a fact from which they might infer that he was sweeping the track. If so, they might find that escape was impossible. White v. Railroad Co., 144 Mass. 404, 11 N.E. 552; Freeman v. Insurance Co., 144 Mass. 572, 12 N.E. 372.
George A. Torrey, for defendant.
It is well settled that the plaintiff cannot recover if all the evidence in the case is equally consistent with either care or negligence on the part of the intestate. Crafts v. Boston, 109 Mass. 519. The circumstances in the case at bar are less favorable to the plaintiff than were those in Crafts v. Boston. The case at bar is a much weaker case for the plaintiff than Hinckley v. Railroad Co., 120 Mass. 257. See Mayo v. Railroad, 104 Mass. 137. The case of Corcoran v. Railroad Co., 133 Mass. 507, presents a stronger case for the plaintiff than the case at bar, and yet the plaintiff was not allowed to recover. The case of Riley v. Railroad Co., 135 Mass. 292, was very similar to the case last cited. The case of Blanchette v. Manufacturing Co., 143 Mass. 21, 8 N.E. 430, is a stronger case for the plaintiff than the case at bar, and yet the plaintiff was not permitted to recover. The precedents upon which we rely are not confined to this commonwealth. In the case of Railway Co. v. Greene, 106 Ind. 279, 6 N.E. 603, (a case very similar to Hinckley v. Railway Co., ubi supra,) the court says: "The facts and circumstances illustrating the conduct of the injured person at the time of the accident must be made to appear." The case of Sorenson v. Pulp Co., 56 Wis. 338, 14 N.W. 446, is quite similar to the case at bar. Even in England, where the burden of proving contributory negligence is upon the defendant, a plaintiff would not be allowed to recover upon the facts in the case at bar. In Wakelin v. Railway Co., L.R. 12 App. 41, where the dead body of a man was found on the railroad, the man having been killed by a train, Lord HALSBURY, L.C., says: See, also, Chase v. Railroad Co., 77 Me. 62; State v. Railroad Co., 76 Me. 357; Starry v. Railroad Co., 51 Iowa, 419, 1 N.W. 605; State v. Railroad Co., 60 Md. 555; State v. Railroad Co., 58 Md. 221; Curren v. Chemical Co., 36 N.Y. 153; Cadell v. Railroad Co., 75 N.Y. 330; The Gladiolus, 21 F. 417. Unless this whole line of decisions is to be overruled, it is impossible for the plaintiff to recover in the case at bar.
OPINION
The only question presented by the case is whether any evidence was offered from which due and ordinary care could be inferred on the part of the plaintiff's intestate when the injury to him occurred. He was not the servant of the defendant, but of the elevator company; employed to perform such duties as might be assigned to him, and "to make himself generally useful." As the evidence tended to show, he was engaged in assisting the unloading of two cars in the elevator building, which had been brought in by the defendant, the brakes of which had been set, and the cars thus rendered stationary. The defendant negligently, and without reasonable warning, while this operation was being performed, sent certain other cars into the building against the stationary cars with such violence as to force them a considerable distance from their position. Immediately after, the plaintiff's intestate was found dead lying across one rail of the track. The track upon which the stationary cars thus being discharged stood, was a single one, laid down between a platform (covering hoppers into which the grain was discharged from the cars) and the brick wall on the other side of the building. The cars occupied the whole space between this platform and the wall, except about eight inches on either side. During the operation of unloading, it was common for grain to fall from the cars outside the hoppers, and upon or near the track, and grain had so fallen at this time. It was the custom to sweep the grain which had thus fallen into the hopper. It was a part of Maguire's duty, with that of the other men, to do this, and at other times he had been thus engaged. A few minutes before the accident he had been standing on the platform, attending to the regulation of feed from the hopper to the elevator belt, by which the grain was raised to the bins in the upper story, which was done by means of a small wheel regulated by hand. The assistant to the second foreman had told him "that would be enough," "to leave it," and did not know where Maguire then went to. "I then went to the other hopper," the witness continued, "and heard my second foreman sing...
To continue reading
Request your trial