Nickerson v. Boston & M. R. R.

• Decision Date: 24 March 1961
• Citation: 173 N.E.2d 248,342 Mass. 306
• Parties: Florence NICKERSON et al. v. BOSTON AND MAINE RAILROAD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 248

173 N.E.2d 248

342 Mass. 306

Florence NICKERSON et al. v. BOSTON AND MAINE RAILROAD.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 6, 1961.

Decided March 24, 1961.

Joseph M. Cohen, Maurice Perlman and Irving Perlman, Boston, with him, for plaintiffs.

Walter F. Henneberry, Weston, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

Florence Nickerson (hereinafter the plaintiff) and her husband had verdicts in the Superior Court in an action of tort for injuries sustained by the plaintiff, for consequential damages, and for damage to the husband's automobile in a collision between the automobile and the defendant's train of two Budd cars at the School Street crossing in Saugus on June 3, 1957, about 7 a. m. These are the defendant's exceptions to the denial of a motion for directed verdicts and to parts of the charge.

The locus is shown on the accompanying sketch adapted from a blueprint put in evidence by the defendant. The jury could have found the facts hereinafter stated. The plaintiff, returning from work as a telephone operator at the Saugus exchange, was driving the automobile westerly on School Street toward Essex Street. She stopped the car at the spur track, looked to her right, and saw no train. She could see in this direction a substantial distance, at least five or six hundred feet. ¹ She then looked to her left and straight ahead 'for traffic coming onto School Street from Essex Street.' Seeing nothing coming she proceeded across the tracks at about ten miles per hour. She did not hear any train whistles, bells, or horns. Windown in the automobile were open; the plaintiff's hearing was normal. There was nothing to interfere with the plaintiff's view down the tracks 'from the moment she started up until she saw the train just about to strike her car.' When the front of the automobile was three or four feet from the southbound track she first became aware of the oncoming train, a blur to her right; 'a car right on top of her to her right and then Bang.' She was familiar with the crossing, knew that a train customarily came through at School Street at about that time, and had seen the cross bar sign 'Railroad Crossing' on numerous occasions. She knew that there were no gates in use at that location, and no flashing lights or gate tender. The witness did not see the crossing tender at the Essex Street crossing.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The crossing tender testified that he received a warning signal which notified him that the train was approaching. He then went to the center of Essex Street and took his place between the tracks with a whistle and disk stop sign. He could see down School Street and upon seeing the plaintiff's automobile when it was 12 or 15 feet from the spur track he blew his whistle and waved his stop sign.

Answers by the defendant to interrogatories stated speeds of the train as follows: '500 feet from the crossing [it] was 37 mph approximately, 400 feet from the crossing was 37 mph, 200 feet from the crossing was 37 mph, 100 feet from the crossing was decreasing probable 35 mph; * * * the speed of the train proceeding 100 feet from where the alleged collision took place was approximately 40 mph; 25 feet from the place of collision was approximately 39 to 40 mph, at the instate of collision was approximately 39 to 40 mph'; also that brakes were applied and horn sounded 125 feet from the crossing.

The engineer of the train testified as follows: He first saw the automobile when the train was about 125 feet from the School Street crossing. The speed of the train was then about 38 miles an hour and the automobile was then about 35 feet from the spur track with its front just coming into view beyond the house. He 'watched the car for a second' and when 'it made no effort to stop' he put the train into emergency and blew the whistle. The train was on time and had stopped at the Pleasant Hills station and was acheduled to stop at the Cliftondale station, about 800 feet south of the crossing. The bell had been on since leaving Pleasant Hills. The 'School Street crossing * * * is not a whistle crossing.' See G.L. c. 160, § 139. Seeing a collision imminent he stepped back out of the cab. (The firman testified that he did likewise.) The brakes were applied when the train was about 125 feet from the crossing and the train traveled 350 to 400 feet from the time the brakes were applied until the train stopped. The engineer was unable to state the speed at the time of the collision. The fireman's testimony was confirmatory.

Another witness for the defendant testified that a train of two Budd cars traveling at a speed of 37 to 38 miles per hour, on a level straight track, on a dry day, upon an emergency application of brakes in good condition, would stop in approximately 480 feet; at a speed of 40 miles per hour the distance would be 540 feet.

The evidence showed that School Street as a public way extends only to the easterly line of the railroad right of way. The traveled way nevertheless continues across the tracks in the general direction shown by the extension of its side lines on the accompanying sketch, but, as photographs show, bending somewhat to the south therefrom, at least on its northerly side, to avoid the building shown as 'office' on the sketch. Between the easterly and westerly active rails of the crossing there is planking and except for the planking the crossing is 'black topped.' The defendant had put in and maintained the planking and maintained the surface of the crossing between lines lying respectively 18 inches east and west of the north and southbound tracks. The planking and black top were wide enough for two cars. For seven years prior to the accident there had been no change in the general condition of the surface of the crossing. The area is thickly settled; Essex Street is one of the principal streets of the town. School Street extends for about one-half mile, from the tracks to Central Street, also a main street, and there are six accepted streets which intersect with School Street in this distance.

The jury answered five special questions, thus finding (1) the train approached the School Street crossing at a rate of speed greater than was reasonable and proper; (2) the defendant failed to give the signals required by G.L. c. 160, § 138; (3) such failure contributed to the collision; (4) the plaintiff reduced speed to a reasonable and proper rate and proceeded over the crossing at such speed and with such care as were reasonable and proper in the circumstances; and (5) the plaintiff was not guilty of contributory negligence.

1. The facts permitted the application of the principle formulated in Sweeny v. Old Colony & Newport R. R., 10 Allen 368, 375-376, and applied in Murphy v. Boston & Albany R. R., 133 Mass. 121, 125, where the court quoted the following from the Sweeny case. 'It cannot in any just view of the evidence be said that the defendants were passive only, and gave merely a tacit license or assent to the use of the place in question as a public crossing. On the contrary, the place or crossing was situated between two streets of the city, (which are much frequented thoroughfares,) and was used by great numbers of people who had occasion to pass from one street to the other, and it was fitted and prepared by the defendants with a convenient plank crossing, such as is usually constructed in highways, where they are crossed by the tracks of a railroad, in order to facilitate the passage of animals and vehicles over the rails. It had been so maintained by the defendants for a number of years. These facts would seem to bring the case within the principle already stated, that the license to use the crossing had been used and enjoyed under such circumstances as to amount to an inducement, held out by the defendants to persons having occasion to pass, to believe that it was a highway, and to use it as such.' Accord, Hanks v. Boston & Albany R. R., 147 Mass. 495, 18 N.E. 219. See also Chronopouls v. Gil Wyner Co. Inc., 334 Mass. 593, 597, 137 N.E.2d 667. We think the absence of a flagman, present in the Sweeny case and the Murphy case, is not a ground of distinction. Compare recent cases of country, private way, crossings. McCarthy v. Boston & Maine R. R., 319 Mass. 470, 66 N.E.2d 561, 167 A.L.R. 1250; Guertin v. Trustees of New York, N. H. & H. R. R., 322 Mass. 91, 94, 76 N.E.2d 24; Neofotistos v. Trustees of New York, N. H. & H. R. R., 326 Mass. 647, 648, 96 N.E.2d 167; Canty v. New York, N. H. & H. R. R., 337 Mass. 38, 39, 147 N.E.2d 801.

It is not significant that there was evidence to show that the School Street crossing was originally...