McCanna v. New England R. Co.

• Decision Date: 29 March 1898
• Citation: 20 R.I. 430,39 A. 891
• Parties: McCANNA v. NEW ENGLAND R. CO.
• Court: Rhode Island Supreme Court

39 A. 891

20 R.I. 430

McCANNA

v. NEW ENGLAND R. CO.

Supreme Court of Rhode Island.

March 29, 1898.

Action by William McCanna against the New England Railroad Company. Verdict for plaintiff, and defendant petitions for a new trial. Granted.

Page & Page and Arthur Cushing, for plaintiff.

James M. Ripley and John Henshaw, for defendant.

TILLINGHAST, J. This is an action of trespass on the case for negligence. It was tried in the common pleas division, and resulted in a verdict for the plaintiff for $500, and the defendant now petitions for a new trial on the grounds (1) that the verdict was against the evidence and the weight thereof, and (2) that the verdict was against the law. The injuries complained of were received by the plaintiff on the 9th of October, 1895, at about 4 o'clock in the afternoon, at a railroad crossing on the main road between East Blackstone, Mass., and Woonsocket, R. I., in the following manner: The plaintiff, who is an undertaker, had been to a burying ground with a funeral, and was returning along said road to Woonsocket, driving a one-horse hearse, and when he reached the point where the road crosses the railroad at grade, his horse, which was a spirited one, became unmanageable by reason of the approaching train, and, despite the efforts of the plaintiff to control him, plunged forward, and ran into the rear part of the third car of the limited express train running from Boston to Willimantic. The train was a regular one, and was on time when the accident occurred. The hearse was overturned, and the plaintiff was thrown to the ground and injured by the collision, and the horse was so badly injured that he afterwards died in consequence there of. The evidence shows that a person approaching said crossing from the direction in which the plaintiff was approaching it would have an unobstructed view of the railroad for a considerable distance until he gets near to the crossing, when a hill or bank, covered with trees and shrubbery, would shut off his view until he comes near to said crossing. The plaintiff's declaration alleges negligence on the part of the defendant (a) in its failure to blow the whistle; (b) in its failure to ring the bell; (c) in its failure to maintain any gate or flagman at said crossing; and (d) in its failure to give any warning or signal whatever that its locomotive and train were approaching said crossing. The plaintiff was perfectly familiar with the crossing, and had been over it live times before, the same day. He testified that he was looking out for any train that might come along; that he was listening, with his head inclined to the left, and that the first he knew of the approach of the train was when he heard the whistle blow, he then being about 70 feet from the track; that he then gathered up the slack reins, and tried to stop his horse, but could not, as it threw up its head, and made a plunge forward, striking the third car, as aforesaid. On cross-examination plaintiff testified that he was trotting his horse right along until he got within 60 feet or so of the crossing, trying to listen at the same time "with one ear," and that, as he could not hear anything, there was no occasion for him to stop; that, the first he knew, he heard the whistle, and then it was too late to pull up; that, if he had heard the train coming, he would have stopped, but, not hearing it, he did not stop. He further testified that his carriage rattled along, making some noise, while he was trying to listen as aforesaid, and that a hack was being driven just behind him. The plaintiff offered no testimony except his own in support of his case.

It is very clear that upon such testimony as this the plaintiff has no legal claim against the defendant. In attempting to cross the railroad in the manner above stated, he was guilty of gross negligence. He was...