Manley v. Boston & M.R. Co.

• Decision Date: 18 October 1893
• Citation: 34 N.E. 951,159 Mass. 493
• Parties: MANLEY v. BOSTON & M.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 493

34 N.E. 951

MANLEY v. BOSTON & M.R. CO.

Supreme Judicial Court of Massachusetts, Hampshire.

October 18, 1893

Deceased was killed at a grade railroad crossing and the alleged negligence of defendant consisted in a failure to give the signals required by law of the approaching train. Defendant pleaded that deceased was guilty of gross negligence. The bill of exceptions states that said Wallace had lived in the vicinity for several years; was familiar with the locality where the collision occurred. He frequently traveled the road. The train which caused his death was a regular one, which had for a long time passed the point in question at the same time, about 3:21 P.M. There was evidence tending to show that the train was on time; also evidence that the train was late. The train was moving in a northerly direction, and Wallace was approaching the crossing from the west, driving, towards the east, at a slow trot, one horse, attached to a covered wagon, the cloth sides of which extended to the front end of the wagon. He sat back in the wagon, so that his feet were inside, and he was in a position where he could see objects to the right or left, obliquely but not at right angles with the line of motion of his horse. There was evidence tending to show that he approached the crossing at a slow trot, slackening to a walk at the ascending grade near the railroad track, and that the train was approaching around the curve of a hill. It was not in sight when at the whistling post, 80 rods from the crossing being hidden by the hill around which the road curves. That to a traveler distant 26 feet from the crossing a train approaching from the south is in sight when 631 feet away. That to a traveler approaching as stated, and distant 170 feet, the approaching train could be seen at least 385 feet away, towards the south. That 10 or 15 minutes before the collision, while Wallace was at the house of one Richards 900 feet from the crossing, but not in view of it, another train passed said crossing. That said Wallace, when approaching the track, had his head turned around to the right, as if looking at some pigs which he had in a box in the rear of his wagon, and that he did not look to see whether a train was approaching until his horse was going upon the track, when, just as two sharp signals were given with the whistle, he looked out of his wagon towards the train, and was hit by it and killed. A plan of the location is annexed. There was other evidence of the physical features of the locality, and the jury took a view. The defendant prayed the court to instruct the jury that (1) "if Joseph Wallace was familiar with the locality, and knew the time when the train was due to pass this crossing, and if he attempted to pass it without looking to see whether the train was approaching, his negligence was gross;" (2) "that, if he was familiar with the locality, and knew the time when the train was due to pass this crossing, he did look and see the approaching train, and then did attempt to cross in front of it, his negligence was gross and willful." The court declined to give the instructions prayed for, and the...