Slattery v. New York, N.H.&H.R. Co.

• Decision Date: 21 October 1909
• Citation: Slattery v. New York, N.H.&H.R. Co., 203 Mass. 453, 89 N.E. 622 (Mass. 1909)
• Court: Supreme Judicial Court of Massachusetts
• Parties: SLATTERY v. NEW YORK, N. H. & H. R. CO. (two cases).

203 Mass. 453

89 N.E. 622

SLATTERY

v.NEW YORK, N. H. & H. R. CO. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 21, 1909.

Exceptions from Superior Court, Worcester County.

Actions by Margaret Slattery, administratrix of James A. Slattery, against the New York, New Haven & Hartford Railroad Company. There was a verdict for defendant in each action, and plaintiff in each action brings exceptions. Overruled in part, and sustained in part.

D. I. Walsh and F. N. Spellman, for plaintiff.

Choate, Hall & Stewart and Arthur J. Young, for defendant.

LORING, J.

These are two actions of tort brought by the administratrix of the estate of one James A. Slattery, who was killed by one of the defendant's passenger trains on a highway crossing at grade in the city of Worcester. The first count is founded on St. 1907, p. 338, c. 392 (amending Rev. Laws, c. 111, § 267, and St. 1906, p. 506, c. 463, pt. 1, § 63), which (inter alia) makes a railroad liable to a fine in case the death of one in the exercise of due care is caused by the negligence of its agents or servants. The second count is founded on St. 1906, p. 580, c. 463, pt. 2, § 245 (re-enacting Rev. Laws, c. 111, § 268), which makes a railroad liable to a fine in case a person is killed at a crossing where the bell must be rung or the whistle sounded, and it appears that those signals were not given as required by law and that that neglect contributed to the accident, unless the defendant proves that the deceased was guilty of gross or willful negligence.

The second action was brought for the conscious suffering of the intestate caused by the same accident.

An agreement was made as to the point from which the deceased had a view of the track in question. It was also agreed that ‘by order of the board of railroad commissioners issued under Rev. Laws, c. 111, § 189, as amended by St. 1906, p. 555, c. 463, pt. 2, § 148, the defendant company was exempt from blowing the locomotive whistle as a signal at this crossing.’ On these two agreements and the plaintiff's evidence the presiding judge directed a verdict for the defendant in both actions. The cases are here on exceptions to those rulings.

The accident happened at about 42 minutes after 6 o'clock on the morning of December 14, 1907.

The intestate came to the crossing in question on the northerly side of Plymouth street, and was killed by an outbound passenger train on the fifth of the eight tracks which are laid across that street and which constitute the grade crossing in question. There are gates across the highway at each end of the crossing, operated by a crank situated on the west end of it. The intestate came to the crossing from the east. The evidence showed that the gates were up on the east side of the crossing when he passed them.

The nearest rail of the track here in question was 84 feet from the gate as a man walked on the north side of Plymouth street and of the crossing. There was evidence that there were freight cars standing on the first three tracks, which wholly obstructed the view of a train on the track here in question, that is, the outward bound track. From the gate to the westerly rail of the third track was 59.5 feet. From there to the nearer rail of the track in question was 24 1/2 feet. The parties ‘agreed that the distance from a point where Slattery had a clear view of 500 feet in the direction from which the train was approaching to the nearer rail of the track on which the train that hit him came was 25 feet.’

Only one witness testified to what Slattery did after he passed by the gates. He testified that: ‘The freight was passing the New Haven road about at the time he passed when I was coming and they commenced to lower the gates. The gates had not been completely lowered at the time he was struck. They were just being lowered at the time I saw him struck. I saw the engine of the passenger train strike him. As he walked beyond the gates and over the tracks there as he walked up to the time he was struck, he was walking along just as he would be going to his work, looking straight ahead.’

The intestate had no right to rely exclusively on the fact that the gates were up when he passed by them. He was bound to use his own senses to determine whether it was safe to go on. Ellis v. Boston & Maine R. R., 169 Mass. 600, 48 N. E. 839, and cases there cited; Santore v. N. Y. Central, etc., R. R. (Oct., 1909) 89 N. E. 619, and cases cited.

The only evidence introduced by the plaintiff shows that the intestate did not look. In addition it is apparent that he would have seen the train if he had looked. Under these circumstances the plaintiff failed in showing that the intestate was in the exercise of due care. Hudson v. Lynn & Boston R. R., 185 Mass. 510, 71 N. E. 66;Walsh v. Boston & Maine R. R., 171 Mass. 52, 50 N. E. 453;Raymond v. New York, New Haven & Hartford R. R., 182 Mass. 337, 65 N. E. 399;Roberts v. N. Y., N. H. & H. R. R., 175 Mass. 296, 56 N. E. 559;Fitzgerald v. Boston Elevated Ry., 194 Mass. 242, 80 N. E. 224. It follows that the verdicts were rightly ordered in the second action and on the first count in the first action.

We are however of opinion that there was error in ordering a verdict for the defendant on the second count of the first action.

Three witnesses testified as to the ringing of the bell. When two of them, Boyer and Nora Moriarty, came to the gates, they were down. But the third, Cahill, who trying to catch up with Slattery, passed the gates as they were being lowered, and kept on after Slattery. On his direct examination Cahill testified: ‘I didn't notice any bell or sound from the train as it came along.’ On his cross-examination he testified: ‘I didn't notice whether the bell was ringing or not. I didn't hear it. I would pay attention to it if I heard it, but I didn't hear it. If it had rung I would have heard it. I wasn't paying any attention to hear whether the bell was ringing or not because I didn't hear it.’

Whether testimony by a witness that he did not hear a bell ring is evidence that it did not ring depends upon the surrounding circumstances. ‘Ordinarily, all that a witness can say, in such a case, when called to prove that a bell was not rung, is that he did not hear it. Such a statement, with no accompanying facts, is merely negative, and of no value as evidence. But attending circumstances may be shown which make the statement strong affirmative evidence. It may appear that all the attention of which the witness was capable was concentrated on the effort to ascertain whether the bell was rung, and his failure to hear it could only have been because it made no sound. A witness may be in any conceivable attitude of attention or inattention, which will give his evidence value, or leave it with little or no weight; but where his position is such that the sound would have been likely to attract his attention if the bell had been rung, his failure to hear it is some evidence that there was no ringing.’ Knowlton, J., in Menard v. B. & M. R. R., 150 Mass. 386, 387, 23 N. E. 214.

Cases like Tully v. Fitchburg Railroad, 134 Mass. 499, and Livermore v. Fitchburg R. R., 163 Mass. 132, 39 N. E. 789, on the one hand, and those like Lamoureux v. N. Y., N. H. & H. R. R., 169 Mass. 338, 47 N. E. 1009,Walsh v. B. & M. R. R., 171 Mass. 52, 50 N. E. 453, and McDonald v. N. Y. C. & H. R. R. R. Co., 186 Mass. 474, 72 N. E. 55, on the other hand, do not reach the question which we have to decide. All that the witness testified to in Tully v. Fitchburg R. R., 134 Mass. 499, was, ‘About the bell ringing I cannot say whether I heard it or not;’ and the testimony given by the witness in Livermore v. Fitchburg R. R., 163 Mass. 132, 39 N. E. 789, was similar. On the other hand in Lamoureux v. New York, N. H. & H. R. R., 169 Mass. 338, 47 N. E. 1009, the witness testified: ‘What took my attention was the team came along and there was not any whistle or sound from the train, and I says to myself, ‘That's funny.” In Walsh v. Boston & Maine Railroad, 171 Mass. 52, 50 N. E. 453, a husband and wife stopped to see the train go by, and they both testified ‘that they heard the usual noise of an approaching train, but that they heard no whistle blown or bell rung before the train reached...