Mitchell v. Cent. Vermont Ry. Co.

• Decision Date: 14 October 1927
• Citation: 261 Mass. 29,158 N.E. 336
• Parties: MITCHELL v. CENTRAL VERMONT RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 29

158 N.E. 336

MITCHELL

v.CENTRAL VERMONT RY. CO.

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 14, 1927.

Exceptions from Superior Court, Hampshire County; Henry T. Lummus, Judge.

Action of tort by Joseph Mitchell against the Central Vermont Railway Company to recover for personal injuries sustained when plaintiff's horses took fright and ran away at blowing of a locomotive engine whistle. Verdict for plaintiff, and defendant excepts. Exceptions overruled.T. R. Hickey, of Northampton, for plaintiff.

W. G. Brownson and J. F. Jennings, both of Springfield, for defendant.

CROSBY, J.

This is an action to recover for personal injuries, received by the plaintiff by being thrown from a load of railroad ties when his team of horses became frightened, and ran away, at the alleged negligent blowing of a whistle by the defendant's servants on one of its locomotive engines.

The accident occurred in the freight yard of the defendant in Amherst. The plaintiff and his brother were engaged in delivering railroad ties to the defendant. Each with a team of horses drove into the yard, and while both were on the plaintiff's wagon unloading the ties an engine came to a stope within 30 or 40 feet from them. As it approached, the horses became restive and showed signs of being frightened. There was evidence tending to show that an engineer and fireman were on the engine, and that they saw the plaintiff and his horses; that when the engine came to a stop, nearly opposite the horses, the plaintiff was on top of the load holding the reins; that the engineer then blew the whistle three times; that when the first was blown, the horses became more frightened, but were under the plaintiff's control; that two sharp, shrill, and excessively long whistles followed, and the horses became unmanageable and ran away, throwing the plaintiff from the load and causing the injuries complained of. There was further evidence tending to show that the second and third whistles were unnecessarily loud and prolonged, the last continuing for a minute.

[1] The evidence showed that this train did not run on any schedule, but was running as an extra; that it arrived at the Amherst station that day at 11:50 in the morning and after some switching in the yard came to a stop at 1:35 in the afternoon, and remained stationary on the track until 4:15, when the whistle was sounded which frightened the plaintiffs horses. If could not properly have been ruled that the plaintiff was guilty of contributory negligence. That was a question for the jury, with the burden of proof resting on the defendant. The plaintiff was where he had a right to be and was engaged in the work he had been employed to do. There was also evidence that his horses were safe and gentle.

As it could have been found that the engineer and fireman were in the cab looking at the plaintiff before the whistle was sounded, and saw or could have seen the frightened condition of the horses and that they were likely to run away and injure the plaintiff, it could also have been found that to sound the whistle in a manner unnecessarily and unusually loud and prolonged was a negligent act. It follows that it could not have been ruled that there was no evidence of negligence on the part of the defendant's servants.

[2][3] If the engineer was about to approach a grade crossing, it was his duty to give the statutory signals. G. L. c. 160, § 138. The defendant had the right to establish and give such other signals as were reasonable and proper in the operation of its road, and if damage resulted therefrom there would be no liability. It does not follow, however, that such signals may be given in an unreasonable and negligent manner. If the train was to pass...