Rogers v. Boston & M.R.r.
| Decision Date | 05 January 1905 |
| Citation | 187 Mass. 217,72 N.E. 945 |
| Parties | ROGERS v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Peters & Cole, for plaintiff.
Henry F. Hurlburt and Damon E. Hall, for defendant.
This is an action for running down and injuring the plaintiff while crossing the defendant's tracks. At the trial in the superior court, at the close of the plaintiff's evidence the judge directed a verdict for the defendant, and the case is before us on the plaintiff's exceptions.
Taking the evidence most favorably for the plaintiff, the following facts appear:
The defendant had three tracks at the place of the accident. One of them was its main track, and on each side of this was a spur track put in for the benefit of a coal and lumber company, which occupied the land on each side of the tracks. The spaces between the tracks were planked in accordance with an agreement made by the predecessor in title of the defendant, and the planking was maintained for the benefit of the coal and lumber company. The tracks ran in an easterly and westerly direction. On the north of the land of the company was the Merrimack river. The way in question crossed the tracks at nearly a right angle, and was used by the company to obtain access to its coal sheds.
The plaintiff was 29 years old, and had been in the employ of the coal and lumber company for three months. He was familiar with the surroundings. He knew that passenger trains and freight trains passed on the main track, and that a train might come along at any moment. He knew, also, that there was no gate or flagman at the crossing, and testified that it was a dangerous crossing, and he knew that he was taking some chances in using it.
To one approaching the tracks from the south, as the plaintiff was doing just before the accident, the view towards the west was obstructed by a lumber shed and by a car on the southerly spur track near the crossing. The plaintiff was on an empty tipcart drawn by two horses, and was on his way to the coal sheds on the northerly side of the tracks to get a load of coal. He testified that as he approached the crossing his horses were walking at a pretty good gait, but as he got nearer he pulled up his horses a little, so that they were walking about a mile an hour, and when his horses' heads were about at the southerly corner of the lumber sheds he pulled up his cap, which had been drawn over his ears listened and looked, but heard and saw nothing; that he kept looking, but could not see anything until he got upon the track where he was struck. He also testified that unless there was some noise in the yard to drown the sound of trains one could hear them; that on that morning the ground was frozen, and his empty cart made considerable noise as he went along; and that there was noise also in the yard.
The only evidence as to the speed of the train came from a witness for the plaintiff who, on direct examination testified that the train, which consisted of a flat car loaded with lumber, pushed by a locomotive engine, was going at the rate of 30 miles an hour, but who on cross-examination testified that he ...
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