McDonald v. New York Cent. & H.R.r. Co.
| Decision Date | 17 October 1904 |
| Citation | 72 N.E. 55,186 Mass. 474 |
| Parties | McDONALD v. NEW YORK CENT. & H. R. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thos F. Cassidy and P.J. Ashe, for plaintiff.
Crosby & Noxon, for defendant.
The defendant's train struck and killed the plaintiff's intestate, a school boy of 7 1/2 years of age, at a grade crossing, as the boy was going home from school about 4 o'clock of a winter afternoon. The action was in tort to recover for his death. At the trial the verdict turned upon the points whether the whistle was blown and the bell rung as required by the statutory provisions now embodied in Rev Laws, c. 111, § 188, and, if not, whether the failure to give the signals contributed to the accident, and whether, if the signals were not given, the boy was guilty of gross negligence.
1. The first question argued upon the plaintiff's brief is whether there was evidence to justify a finding that the statutory signals were not given. Fourteen or more witnesses testified on the point. Some of them, including the engineer and fireman of the train, testified positively that the whistle was blown and the bell rung. Many others testified either that they did not notice or did not remember. Two witnesses testified positively that the whistle was not blown nor the bell rung. Some of the witnesses who testified that they did not notice the signals or did not remember were in position where, if the signals had been given, the witnesses might be expected to notice them and to recall the fact. In this state of the evidence the question whether there was a failure to sound the whistle and ring the bell as required by the statute was for the jury. It was not the case of a single person who testified that he did not remember, as in Tully v. Fitchburg Railroad, 134 Mass. 499; or simply of several persons who testified either that they did not notice or did not hear, as in Hubbard v. Boston & Albany Railroad Co., 159 Mass. 320, 323, 34 N.E. 459. At least two witnesses who were so placed that they might have heard the signals if given took the responsibility of testifying that the signals were not given. See Johanson v. Boston & Maine Railroad, 153 Mass. 57, 59, 26 N.E 426; Lamoureux v. New York, New Haven & Hartford Railroad Co., 169 Mass. 338, 47 N.E. 1009; Walsh v. Boston & Maine Railroad, 171 Mass. 52, 57, 50 N.E. 453. Others of the witnesses were in such positions that, if the signals had been given, the witnesses easily might have heard. Menard v. Boston & Maine Railroad, 150 Mass. 386, 23 N.E. 214. Their failure to hear or notice a signal was competent for the consideration of the jury. Daniels v. New York, New Haven & Hartford Railroad Co., 183 Mass. 393, 396, 67 N.E. 424, 62 L. R. A. 751.
2. The bill of exceptions raises a question of evidence which it is well to consider before dealing with the other exceptions. The only count on which the case went to the jury was the one alleging the failure to give the statutory signals, and was founded on the provisions now embodied in Rev. Laws, c. 111 § 268. It is settled that, if the gross or willful negligence of the persons killed is relied on as a defense to such a count the burden of proving such negligence is upon the defendant. Copley v. New Haven & Northampton Co., 136 Mass. 6; Walsh v. Boston & Maine Railroad, 171 Mass. 52, 57, 50 N.E. 453. If the only reasonable conclusion to be drawn from the evidence is that the person killed was guilty of such negligence, or was engaged in committing an unlawful act, the court should order a verdict for the defendant. See Emery v. Boston & Maine Railroad, 173 Mass. 136, 139, 53 N.E. 278. It was not in dispute that the deceased came out of school shortly before the passing of the train, and started homeward over a highway leading first in a direction parallel with, and not far from, the railroad, and then turning and leading over the crossing. He was in company with another school boy of about his own age, whose route homeward was over the same crossing. When the deceased was struck by the train the two boys were within a few feet of each other. The boy who was in company with the deceased was a witness at the trial. The substance of his testimony was that the deceased and himself were together at first, and that on the part of the road which was parallel with the railroad the deceased ran ahead a little ways, and got past the witness, and kept in advance to the crossing; that the witness was on the crossing when he saw the train coming and turned and went back; that he stood six or seven feet from the cars when the train went by; that as the witness turned and went back he did not see the deceased, as he remembered, and that he did not remember that the deceased was ahead of or behind him as the witness came down toward the crossing, and that he did not remember that he saw the deceased again after the witness turned and went back; that he did not see the train strike the deceased; that while the train was passing the witness was looking down towards the depot 'about a minute,' and then turned around and saw the deceased lying down on the snow bank beside the track; that he at the time of the trial was seven years of age, and going on eight; that he and the deceased usually went home from the...
To continue reading
Request your trial