Morel v. New York, N.H.&H.R.R.

• Decision Date: 25 May 1921
• Citation: 131 N.E. 175,238 Mass. 392
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MOREL v. NEW YORK, N. H. & H. R. R. DELISLE v. SAME. ARMOUR & CO. v. SAME.

238 Mass. 392

131 N.E. 175

MOREL

v.NEW YORK, N. H. & H. R. R.

DELISLE

v.SAME.

ARMOUR & CO.

v.SAME.

Supreme Judicial Court of Massachusetts, Norfolk.

May 25, 1921.

Exceptions from Superior Court, Norfolk County; Franklin T. Hammond, Judge.

Three actions, by Mary O. Morel, administratrix, by Joseph Delisle, and by Armour & Co., against the New York, New Haven & Hartford Railroad, for damages to a truck and personal injuries in a collision between the truck and a railroad engine. Verdicts for defendant, and plaintiffs bring exceptions, Exceptions overruled in each case.Edward Carr and John F. Barry, both of Boston, for plaintiffs.

John L. Hall and Joseph Wentworth, both of Boston, for defendant.

RUGG, C. J.

These are three actions of tort founded on a collision between an automobile truck, owned by Armour & Co., driven by Conrad Morel, upon which the plaintiff Delisle was riding, and a locomotive of the defendant at a grade crossing. Morel, whose administratrix brings an action to recover for his death, was employed as chauffeur by Armour & Co. to drive its truck. Delisle, who seeks to recover damages for personal injuries sustained by him, was employed by Armour & Co. as helper. The action by Armour & Co. is to recover damages for injury to the truck. The time of the accident was about half past 4 on the afternoon of a rainy day early in January.

Much evidence was introduced to the point whether the statutory signals were given, required by St. 1906, c. 463, part 2, § 147, on the approach of every locomotive to a highway grade crossing. There was evidence also regarding the conduct of Delisle and Morel just before and at the time of the collision.

No exception was taken to the charge. It stated fully and comprehensively the theory adopted by the judge upon which the case went to the jury. That theory was that the ground for recoverywas failure to give the statutory signals required by said section 147, that the plaintiffs could not prevail unless such failure was proved by fair preponderance of the evidence, the burden in this respect resting on them, that no question of negligence of the defendant or its servants was involved, and that if such failure were proved, then there should be verdicts for each of the plaintiffs unless the defendant, upon whom the burden rested in this particular, had proved that the ‘accident was caused in whole or in part by the gross or willfull negligence of the chauffeur,’ Morel. It placed the cases wholly upon St. 1906, c. 463, part 2, § 245. They must be considered on that footing, since no exception was taken to any part of the charge. Its correctness is not before us.

The only exceptions presented on this record are to the refusal to grant two requests of the plaintiffs for instructions. In the case of Delisle an instruction was requested in these words:

‘Even if the jury believed that the driver of the truck was negligent in any degree, this negligence cannot be imputed to the plaintiff Delisle.’

This was denied rightly.

It is provided in said section 245 that a plaintiff may recover for damages caused from failure to give the statutory signals required by said section 147, ‘unless it is shown that, in addition to a mere want of ordinary care, the person injured or the person who had charge of his person or property was, at the time of the collision, guilty of gross or willful negligence * * * and that such gross or wilful negligence * * * contributed to the injury.’ There was ample evidence from which the jury might have found that the chauffeur, Morel, ‘had charge of his [the] person’ of Delisle in the sense in which those words are used in the statute. The two men were riding in the cab of the autotruck, ‘sitting dry in there,’ which had windshields in front, ‘curtains down on both sides and strapped tight,’ and ‘in back of the cab there was a window with isinglass.’ Delisle also testified that ‘the first thing I observed when I got on the track I looked on my side, then I looked on the other side and when I looked on the other side I saw the light of the engine and that was all,’ that he knew nothing about the operation of the truck, was unable to drive it and left himself in the care of Morel so far as the running of the machine was concerned. This with the other testimony was strong, if not conclusive, evidence that the plaintiff depended upon the care of Morel to the extent of committing charge of his person so far as concerned his transportation in the truck and its passage...