Morrissey v. Boston & M.R.r.

• Decision Date: 22 October 1913
• Citation: 102 N.E. 924,216 Mass. 5
• Parties: MORRISSEY v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 5

102 N.E. 924

MORRISSEY v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Franklin.

October 22, 1913

COUNSEL

Frank J. Lawler, of Greenfield, for plaintiff.

Dana Malone and Chas. N. Stoddard, both of Greenfield, for defendant.

OPINION

SHELDON J.

The defendant contends that a verdict should have been ordered in its favor.

It is settled that a grade crossing like the one at which the plaintiff's intestate was killed is a highly dangerous place; and it was the duty of the intestate in driving over it to make a reasonable use of his senses to ascertain whether a train was about to pass, and a failure to do this would constitute negligence on his part such as to prevent a recovery by him or by his administrator for an injury or for his death, where, as here, the statutory signals were given from the approaching train. Rogers v. Boston & M. R R., 187 Mass. 217, 219, 72 N.E. 945. But there was evidence that his view was so obstructed by cars and trains upon other tracks of the defendant that the train which struck him could not be seen until he was almost upon the crossing; that there was much noise about there, so that the coming train or its signals could not be heard; and that the defendant's fiagman whose duty it was to guard this crossing had his attention engaged elsewhere, and gave no warning to the intestate until the latter was close upon the track and could not avoid being struck. Under these circumstances, the question of the intestate's due care was for the jury. He could rely to some extent upon the fact that as he approached the crossing he had no warning from the flagman to whom the defendant had intrusted the duty of giving reasonable warning to travelers. It could be found that his senses of sight and hearing gave and could give him no information of the impending danger. These circumstances could not excuse him from the duty of exercising diligence for his own protection; but they were matters to be considered by the jury. As it was put by Rugg, J., in Fitzhugh v. Boston & Maine R. R., 195 Mass. 202 204, 80 N.E. 792, 793, it could be found that the intestate 'for a reasonable distance before reaching the crossing, was on the lookout for the train and depended upon his own sight and hearing, his watch for the flagman, and the action of his horse, * * * to advise him if he was in danger, and he received no warning through any of these channels, until it was too late.'

Here as in that case, 'it cannot be said, therefore, as matter of law, that [he] was not in the exercise of due care.' The admitted physical surroundings, the time and atmospheric conditions here were not, as they were in Allen v. Boston & Maine R. R., 197 Mass. 298, 301, 83 N.E. 863, such as to show ample opportunity for the intestate...