Robbins v. Fitchburg R. Co.
| Decision Date | 28 March 1894 |
| Citation | 36 N.E. 752,161 Mass. 145 |
| Parties | ROBBINS v. FITCHBURG R. CO. WRIGHT v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from superior court, Suffolk county; P. Emory Aldrich, Judge.
Action by Levi H. Robbins against the Fitchburg Railroad Company for personal injuries. Verdict for defendant, directed by the court. Plaintiff excepts. Exceptions sustained.
Action by Alice M. Wright against the Fitchburg Railroad Company for personal injuries. Verdict for defendant, directed by the court. Plaintiff excepts. Exceptions sustained.
Samuel J. Elder, Charles B. Stone, and Alphonso A. Wyman, for plaintiffs.
Geo. A. Torrey, for defendant.
It cannot be said as a matter of law that the plaintiffs were negligent at any time prior to the moment when they first saw the train. No train was then due, according to schedule time; but the train was late. The plaintiff Robbins knew that for 10 years there had been a flagman at the crossing, and that the flagman's wife was accustomed to use the flag. She was there on the spot, and was seen by the plaintiffs, and she had no flag, and made no signal for them to stop. From this and the other testimony the jury might have found due care up to that moment. Johanson v. Railroad Co., 153 Mass. 57, 26 N.E. 426;Merrigan v. Railroad Co., 154 Mass. 189, 28 N.E. 149. They were then within from 30 to 50 feet of the track. The train was coming, and the question was, what to do. The plaintiff Robbins testified that he thought he had better get across; that he did not dare stay where he was; that there was a banking down each side of the road; and that it was a pretty close place. So he whipped the horse, and they actually got across the track without being hit by the train. Then the horse broke. Instead of going on, perhaps he might have got out and held the horse, or perhaps he might have tried to turn round, if there was room. The decision had to be made instantly, and it depended somewhat on the position of the ground, and what it was possible to do. It seems to us that it cannot be said as a matter of law that the plaintiffs had failed to show that Robbins was in the exercise of due care. The plaintiffs were entitled to go to the jury upon this question. It was conceded that there was evidence for the jury on the point of the defendant's negligence. Exceptions sustained.
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