Menard v. Boston & M.R. Co.

• Decision Date: 01 January 1890
• Citation: 150 Mass. 386,23 N.E. 214
• Parties: MENARD et al. v. BOSTON & MAINE R. CO., (three cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 386

23 N.E. 214

MENARD et al. v. BOSTON & MAINE R. CO., (three cases.)

Supreme Judicial Court of Massachusetts, Essex.

January 1, 1890

COUNSEL

H.P. Moulton and George B. Ives, for plaintiffs.

S Lincoln, for defendant.

OPINION

KNOWLTON, J.

In each of these cases the second count of the declaration was drawn under Pub.St. c. 112, § 213, to enforce the liability of the defendant for an omission to cause the bell of the engine to be rung or the whistle to be sounded at the distance of at least 80 rods from the crossing of the highway, and rung or sounded continuously or alternately until the engine had crossed the way, as required by section 163 of this chapter. The presiding justice ruled that there was no evidence of neglect to give these signals, and ordered a verdict for the defendant upon the second count in each of the three cases.

The plaintiff in the first case, who was driving with her husband in the buggy which was struck by the locomotive engine, and Joseph T. Menard and Arthur Caron, who were riding together in a buggy immediately before that which was struck, and John F. Standley, Hugh J. Munsey, and Robert N. Brown, who were out of doors in the immediate neighborhood, and saw the team and heard the danger signals, all testified that they had not heard either bell or whistle before the danger signals were sounded. Ordinarily, all that a witness can say, in such a case, when called to prove that a bell was not rung, is that he did not hear it. Such a statement, with no accompanying facts, is merely negative, and of no value as evidence. But attending circumstances may be shown which make the statement strong affirmative evidence. It may appear that all the attention of which the witness was capable was concentrated on the effort to ascertain whether the bell was rung, and his failure to hear it could only have been because it made no sound. A witness may be in any conceivable attitude of attention or inattention, which will give his evidence value or leave it with little or no weight. But where his position is such that the sound would have been likely to have attracted his attention, if the bell had been rung, his failure to hear it is some evidence that there was no ringing. In the case at bar there were six witnesses who testified that they heard no bell nor whistle until the danger whistles were sounded close by the crossing. All of these were in such positions that they...