Ormsbee v. Boston & Providence Railroad Corp.

• Decision Date: 10 February 1883
• Citation: 14 R.I. 102
• Parties: MARY A. ORMSBEE, Administratrix, v. BOSTON & PROVIDENCE RAILROAD CORPORATION.
• Court: Rhode Island Supreme Court

14 R.I. 102

MARY A. ORMSBEE, Administratrix, v. BOSTON & PROVIDENCE RAILROAD CORPORATION.

Supreme Court of Rhode Island.

February 10, 1883

A traveller on a highway, when about to cross a railroad track is bound to look up and down the track before crossing although the railroad company may not have given the ordinary signals. Neglect so to do is, in case of accident contributory negligence on the part of the traveller, unless obstructions prevent a view of the track, or unless he had some assurance of safety from the railroad company which excuses him.

O., a deaf mute, was struck and killed by a train of cars which was making a flying switch across a highway. The engine had passed by, and O. walked in the highway on to the track " bent forward, as an old man would walk, with his head bowed down, looking toward the engine." There was an unobstructed view of the tracks for a long distance in both directions; a gate was closed across the highway on the further side of the tracks; but there was no stationary bell nor whistle sounded as required by statute.

In an action by O.'s administrator against the railroad company for causing O.'s death:

Held, that O.'s negligence precluded a recovery.

DEFENDANT'S petition for a new trial.

E. L. Barney and Perce & Hallett, for plaintiff.

Arnold Green, for defendant.

STINESS J.

In this case it appeared that Paschal Ormsbee, plaintiff's husband and intestate, a deaf mute, was killed while attempting to cross the defendant's track at a public crossing in East Providence. At this crossing there was an unobstructed view of the track in both directions, for a long distance, from the approach on the west side where Ormsbee was; there was daylight at the time, and a gate was down on the east side, in plain view from the west side, but no stationary bell nor whistle was sounded while the train was crossing as required by statute. As a train was making a " flying switch," so called, the engine having passed the crossing towards the south and then backed towards it on another track, Ormsbee walked to and upon the track, " bent forward as an old man would walk, with his head bowed down, looking toward the engine," as stated by the witnesses who saw him. Without looking to the north, whence the cars were approaching, he was struck by the forward car and instantly killed. Upon this state of facts the defendant claims that the plaintiff cannot recover, because Ormsbee was guilty of negligence in not looking both ways before he stepped upon the track, and asked for such a ruling.

It was, however, left to the jury to say whether the diversion of his attention by the passing and backing of the engine would excuse him for not doing so, or whether in view of that fact he was bound to look elsewhere.

That ordinary prudence requires one who enters upon so dangerous a place as a railroad crossing to use his senses, to listen, to look, or to take some precaution for the purpose of ascertaining whether he may cross in safety, is an established rule both of law and experience. Railroad Co. v. Houston, 5 Otto, 697; Wright v. Boston & Maine Railroad, 129 Mass. 440; Hinckley v. Cape Cod R. R. Co. 120 Mass. 257; Allyn v. Boston & Albany R. R. Co. 105 Mass. 77; Butterfield v. Western R. R. Co. 10 Allen, 532; McGrath v. N.Y. Central & H. R. Railroad Co. 59 N.Y. 468; Gorton v. Erie R. R. Co. 45 N.Y. 660; Harty v. Central R. R. Co. of N. J. 42 N.Y. 468; Wilcox v. Rome, Watertown & Og. R. R. Co. 39 N.Y. 358; Welds v. Hudson River R. R. Co. 24 N.Y. 430; Chicago & North Western R. R. Co. v. Hatch, 79 Ill. 137; Illinois Central R. R. Co. v. Goddard, 72 Ill. 567; Chicago, Rock Island & Pacific R. R. Co. v. Bell, 70 Ill. 102; St. Louis & South Eastern R. R. Co. v. Mathias, 50 Ind. 65; Haines v. Illinois Central R. R. Co. 41 Iowa 227; Brown v. Milwaukee & St. Paul R. R. Co. 22 Minn. 165; Ben ton v. Central Railroad of Iowa, 42 Iowa 192; Pennsylvania R. R. Co. v. Righter, 42 N. J. Law, 180; Zimmerman v. Hannibal & St. Joseph R. R. Co. 71 Mo. 476.

We have been referred to numerous cases in the elaborate brief of the plaintiff, which, it is claimed, show that this is not a rule of law but a matter of fact, the propriety or necessity of which is to be determined by the jury. An examination of these cases, however, shows that most of them are not in conflict with such a rule, but may be classed as exceptions to it, on the following grounds:

First . Where the view of the track is obstructed, and hence where the injured party, not being able to see, is obliged to act upon his judgment at the time; in other words, where compliance with the rule would be impracticable or unavailing. Commonwealth v. Fitchburg R. R. Co. 10 Allen, 189; Craig v. New York & New Haven R. R. Co. 118 Mass. 431; Webb v. Portland & Kennebec R. R. Co. 57 Me. 117; Johnson v. Hudson River R. R. Co. 20 N.Y. 66; Continental Improvement Co. v. Stead, 5 Otto, 161; Pennsylvania R. R. Co. v. Ogier, 35 Pa. St. 60; Fordham v. London, Brighton & c. R. R. Co. L. R. 3 C. P. 368; Stubley v. London & North Western R. R. Co. L. R. 1 Exch. 13; Dublin, Wicklow & Wexford R. R. Co. v. Slattery, L. R. 3 App. Cas. 1155.

In this last case Lord Chancellor Cairns remarks: " If a railway train, which ought to whistle when passing through a station, were to pass through without whistling, and a man were in broad daylight, and without anything either in the structure of the line or otherwise to obstruct his view, to cross in front of the advancing train and to be killed, I should think the judge ought to tell the jury that it was the folly and recklessness of the man, and not the carelessness of the company, which caused his death."

Second . Where the injured person was a passenger going to or alighting from a train, and hence, under an implied invitation and assurance by the company to cross the track in safety. Brassell v. N.Y. C. & H. R. Railroad Co. 84 N.Y. 241; Gaynor v. Old Colony & Newport R. R. Co. 100 Mass. 208; Chaffee v. Boston & Lowell R. R. Co. 104 Mass. 108; Mayo v. Boston & Maine Railroad, 104 Mass. 137; Wheelock v. Boston & Albany R. R. Co. 105 Mass. 203; Stapley v. London, Brighton & c. R. R. Co. L. R. 1 Exch. 21.

Third . Where the direct act of some agent of the company had put the person off his guard and induced him to cross the track without precaution. Warren v. Fitchbury R. R. Co. 8 Allen, 227. In this case the plaintiff was a passenger and shown across the track by the station agent.

Other cases cited by the plaintiff apparently, but most of them only apparently, sustain her claim that an omission to look where the view is plain is not negligence as a matter of law but a question for the jury.

In Williams v. Grealy, 112 Mass. 79, the court refused to disturb a verdict for the plaintiff for an injury from a runaway horse, towards which it was claimed she did not look, on the ground that they were left in ignorance by the record " of what was proved as to what other objects were in the street, or whether the horse could have been seen by her." A dictum follows that the mere fact of not looking when one attempts to cross a railroad is not conclusive evidence of want of care, citing only Chaffee v. Boston & Lowell R. R. Co. 104 Mass. 108, which was the case of a passenger.

French v. Taunton Branch Railroad, 116 Mass. 537, is a case exactly in point for the plaintiff; but as it is in conflict with the earlier and later decisions of the same court above cited, we cannot regard it as authority. Furthermore it purports to rest only on the authority of Wheelock v. Boston & Albany R. R. Co. 105 Mass. 203, and Chaffee v. Boston & Lowell R. R. Co. 104 Mass. 108, both of which were cases of passengers, therefore not applicable, and that of Allyn v. Boston & Albany R. R. Co. 105 Mass. 77, which is directly contrary to the decision of the case; holding, that as a driver did not look there was no evidence of due care for the jury, and that the fact that he did not know there was a railroad there was no excuse, because he must have seen it if looking, and if he was not looking he was negligent.

In some of the New York cases, there was an evident inclination to hold the law as claimed by the plaintiff, not by direct statement to that effect, it is true, but substantially that, by allowing the plaintiff's case to be determined in view of the defendant's negligence.

In Brown v. N.Y. Central R. R. Co. 32 N.Y. 597, a case similar to the one before us, a majority...