Merrigan v. Boston & A.R. Co.
| Decision Date | 27 June 1891 |
| Citation | 154 Mass. 189,28 N.E. 149 |
| Parties | MERRIGAN v. BOSTON & A.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from superior court, Suffolk county.
HEADNOTES
Trial 267(1)
388 ----
388VII Instructions to Jury
388VII(E) Requests or Prayers
388k267 Modification or Substitution by Court
388k267(1) In General.
It is no ground of exception because the court, in charging the jury, departed from the forms of expression employed in requests where they were given in substance.
Railroads 330(2)
320 ----
320X Operation
320X(F) Accidents at Crossings
320k323 Contributory Negligence
320k330 Reliance on Precautions on Part of Railroad Company
320k330(2) Signboards, Signals, Flagmen, and Gates at Crossings.
Existence of crossing gates does not excuse traveler's failure to look, but is circumstance to be considered in determining extent he will look.
Railroads 348(1)
320 ----
320X Operation
320X(F) Accidents at Crossings
320k341 Actions for Injuries
320k348 Sufficiency of Evidence
320k348(1) In General.
Jury may infer from railroad's erection of gates at crossing at city's request that they were reasonably necessary for public safety.
Railroads 350(5)
320 ----
320X Operation
320X(F) Accidents at Crossings
320k341 Actions for Injuries
320k350 Questions for Jury
320k350(5) Signboards, Signals, Flagmen, and Gates at Crossings.
Where railroad's construction of requested crossing gates amounted to admission of reasonable necessity therefor question whether such admission of necessity applied to Sunday, when gates were operated but one hour, and that not hour when accident involved occurred, held for jury.
Railroads 351(18)
320 ----
320X Operation
320X(F) Accidents at Crossings
320k341 Actions for Injuries
320k351 Instructions
320k351(12) Contributory Negligence
320k351(18) Reliance on Precautions on Part of Railroad Company.
Instruction that notwithstanding crossing gates plaintiff was not excused from looking, though he might consider fact that gates were open in determining to what extent he would look held correct.
I.R Clark and Fletcher Ranney, for plaintiff.
Samuel Hoar, for defendant.
The first exception is to the admission of an order of the mayor and aldermen of Boston requesting the defendant to erect gates at the crossing where the accident occurred, coupled with evidence that gates were placed there about the time the order was communicated to the defendant. The second exception is to an instruction to the jury that if they found that the defendant acted, or procured action, upon the order, they might consider it as an admission by the defendant that the gates were reasonably necessary for the public security. The mere fact that the gates were there would not be such an admission. Menard v. Railroad Co., 150 Mass. 386, 23 N.E. 214. But, if gates were put up in consequence of a representation that public safety required them, the act takes a color from the representation which led to it, and, unless otherwise explained, imports more or less assent to the representation. The order of the mayor and aldermen was such a representation. If it had not been complied with, an application might have been made to the county commissioners, who might have enforced compliance. St.1874, c. 372, § 126; Pub.St. c. 112, § 166. If the order was communicated to the defendant, and shortly afterwards the gates were put up, the jury was at liberty to infer that the gates were put up in consequence of the order, and thence to deduce an admission by the defendant, whether the defendant put up the gates itself, or procured them to be put up by the Boston & Maine Railroad. It is suggested that an admission applicable to the busy parts of the...
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