Peterson v. Boston & M.R.R.

• Decision Date: 20 September 1941
• Citation: 310 Mass. 45,36 N.E.2d 701
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: PETERSON v. BOSTON & M. R. R., and three other cases.

310 Mass. 45

36 N.E.2d 701

PETERSON

v.BOSTON & M. R. R., and three other cases.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 20, 1941.

Exceptions from Superior Court, Suffolk County; Beaudreau, Judge.

Action for personal injuries by Ann Peterson and Nancy Peterson, and actions for personal injuries and wrongful death by Einar A. Peterson, administrator, against the Boston & Maine Railroad arising out of a collision between defendant's freight train and an automobile at a grade crossing. Verdicts for the plaintiffs, and the defendant brings exceptions.

Exceptions sustained and judgment for the defendant.

Argued before FIELD, C. J., and QUA, DOLAN, and COX, JJ.

L. M. Friedman, F. L. Kozol, and J. Schneider, all of Boston, for plaintiffs.

F. P. Garland and R. B. Johnson, both of Boston, for defendant.

QUA, Justice.

These are actions for personal injuries sustained by Ann Peterson and Nancy Peterson and for personal injuries and deaths of Edward Peterson and Ruth C. Peterson, all resulting from a collision on July 27, 1935, between a freight train of the defendant and an automobile driven by Ruth C. Peterson, in which the other persons named were riding, at a grade crossing known as ‘Grasmere Crossing’ in Goffstown, in the State of New Hampshire.

Ann, Nancy, and Edward were all minor children of Ruth. The accident happened at about 12.30 P. M. There was uncontradicted evidence that the day was fair.

In answer to special questions the jury found that the defendant maintained warning signs at the crossing (see N.H. Pub. Laws, c. 249, §§ 13-21); that it caused two long and two short whistles to be given within eighty rods of the crossing and caused the engine bell to ring until the engine had passed the crossing (see N.H. Pub. Laws, c. 249, § 23); and that the speed of the train exceeded twenty-five miles per hour. In each case the jury found generally for the plaintiff on a count alleging broadly that the injury (and the death, in the cases where death occurred) was caused by negligence of the defendant, and in each case found for the defendant on a second count alleging failure to provide a suitable crossing, failure to maintain warning signs, and failure to whistle and ring the bell.

Underlying all other issues is the question whether a verdict should have been directed for the defendant on the first count in each case on the ground that as matter of law there was no evidence that negligence of the defendant contributed to cause the accident. In determining this question we are bound by the law of New Hampshire in so far as that law establishes the standard of care. If by rule of law in New Hampshire a given set of facts does or does not constitute negligence we are bound by that rule as to that set of facts. Smith v. Brown, 302 Mass. 432, 433, 19 N.E.2d 732.Stiles v. Wright, 308 Mass. 326, 330, 32 N.E.2d 220. But where the law of New Hampshire goes no further than to lay down the general standard of the care of the average prudent man under the circumstances, while we are bound to observe that standard, we must determine for ourselves in accordance with our own law of procedure whether there is sufficient evidence to take the case to the jury on the question whether the defendant conformed to the standard. Am.Law Inst. Restatement: Conflict of Laws, s. 595, comment b. United States Fidelity & Guaranty Co. v. Yost, 183 Miss. 65, 82, 183 So. 260,185 So. 564;Fortein v. Delaware, Lackawanna & Western Railroad, 90 N.J.L. 137, 141, 100 A. 194;Singer v. Messina, 312 Pa. 129, 135, 136, 137, 167 A. 583, 89 A.L.R. 1271;Tobin v. Pennsylvania Railroad, 69 App.D.C. 262, 100 F.2d 435, 436, 439, certiorari denied sub nominee Pennsylvania Railroad v. Tobin, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040. What inferences are permissible from evidence is a matter of procedure and not of substantive law and is determined by the law of the forum. See further Am.Law Inst. Restatement: Conflict of Laws, ss. 380, 385 (comment d), 594; Beale, Conflict of Laws, ss. 594.1, 595.1; Hoadley v. Northern Transportation Co., 115 Mass. 304, 307,15 Am.Rep. 106;Gannett v. Boston & Maine Railroad, 238 Mass. 125, 130 N.E. 183;Gould v. Boston & Maine Railroad, 276 Mass. 114, 176 N.E. 807;Holland v. Boston & Maine Railroad, 279 Mass. 342, 181 N.E. 217, and Murphy v. Smith, 307 Mass. 64, 29 N.E.2d 726.

Various items of evidence are put forward by the plaintiffs as sufficient to support a finding of the defendant's negligence. In our opinion they do not either separately or together support such finding. We proceed to consider them.

The plaintiffs' contention that the defendant's cross arm sign was not maintained in accordance with the provisions of N.H. Pub. Laws, c. 249, §§ 13, 14, is based, we think, upon the mistaken belief that § 16 of the same chapter refers to the same signs to which §§ 13 and 14 refer. That this is not so seems clear from c. 4 of the Laws of 1915 and c. 88 of the Laws of 1917. There was no evidence of violation of law in the maintenance of the cross arm sign.

But it is further contended that there was evidence of negligence in that under the circumstances the defendant should have provided some additional and more effective warning than was furnished by the signs, the whistle and the engine bell, and in this connection may be considered evidence that the cross arm sign to which reference has already been made and which was located on a post on the easterly side of the crossing at Mrs. Peterson's right as she approached the crossing from the southeast and about fifteen feet from the nearer rail was obscured to a traveller coming as Mrs. Peterson did by the branches of a pine tree which stood on the northeasterly side of the road about fifty-three feet from the sign and about sixty-eight feet from the nearer rail. In determining whether under the conditions existing proper care could be found to have required further provision such as flash signals, a crossing bell, gates, a flagman, or the like, it becomes necessary to examine into the physical conditions at the crossing. The railroad was a single track line known as the ‘North Weare Branch.’ It ran nearly east and west. There was no evidence of the number of trains running over it. The highway was known as ‘Route 114.’ It ran approximately northwest and southeast. From photographs it would appear to have had a black surface. One witness testified that it was ‘quite extensively traveled’; that there was ‘quite a little travel in the summer time.’ It was twenty-one feet wide at the crossing. There was the usual metal disk crossing sign in plain sight beside the road at Mrs. Peterson's right about three hundered feet from the crossing. At that point the rails on the crossing itself were obscured by a slight intervening rise in the roadway and the track to the left or west, from which direction the train came, could not be seen because of bill-boards, trees and bushes. But upon approaching nearer a view of the track to the left of the crossing began to develop. From photographs and a plan, the accuracy of which has not been questioned, taken in connection with the evidence most favorable to the plaintiffs, it appears that at some point between three hundred feet and two hundred feet from the crossing the railroad track could be seen for a long distance, which the witness who made the plan for the defendant testified was one thousand three hundred and sixty feet to a point opposite the whistling post. If this measurement of the distance is not accepted as correct there remains no measurement and no substantial evidence that the view which must have existed was of less extent. Practically the same view continued until the track was reached. And the cross arm sign came into full view at least as soon as the pine tree was reached. The track crossed the road at such an obtuse angle that a train approaching through the area of clear vision to a traveller in the position of Mrs. Peterson would be more nearly in front of him and more readily observable without looking sidewise than would be the case if the railroad crossed the road at right angles. As Mrs. Peterson passed over this space of between two hundred feet and three hundred feet she necessarily had an unobstructed view of the oncoming train, whose whistle and bell were then sounding. Although there were three or four houses in the vicinity it is plain that in general the crossing was a country crossing in a sparsely settled district. Some point is made of the fact that a trolley track which had followed along the side of the highway at Mrs. Peterson's left departed from it shortly before the crossing was reached and continued at an angle to the left in a direction generally parallel with that of the railroad, although at a lower level, but the presence and position of the two tracks were apparent to one who looked, and it was also apparent that the trolley track did not cross the highway and that the railroad track did cross it.

In view of the location and character of the crossing, the meager and indefinite evidence of the importance or extent of use of either the road or the railroad and of the continuous view which a traveller approaching as Mrs. Peterson did would necessarily have of any train approaching as did the train involved in this accident, we are of opinion that there is no evidence in this record to support a finding that the crossing was one of peculiar danger to persons approaching as she did, and that it could not reasonably be inferred that the defendant, having compliedwith all statutory requirements as to warnings, was under any obligation to her and her companions to provide further special protection at this point. Commonwealth v. Boston & Worcester Railroad, 101 Mass. 201;Bailey v. New Haven & Northampton Co., 107 Mass. 496;Hubbard v. Boston & Albany Railroad, 162 Mass. 132, 135, 136, 38 N.E. 366;Giacomo v. New York, New Haven & Hartford Railroad, 196 Mass. 192, 194, 81 N.E. 899; ...