Somer v. Boston & A.R. Co.
| Decision Date | 11 January 1886 |
| Citation | 6 N.E. 84,141 Mass. 10 |
| Parties | SOMER v. BOSTON & A.R. Co. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.L. Soule, for defendant.
S.T Thomas, for plaintiff.
It must now be assumed, as found by the jury, that the defendant negligently and improperly failed to give the plaintiff warning of the approaching train; and that this negligence caused the accident. The question remains, however, whether the plaintiff should be precluded from recovering by reason of a failure to show due care on his own part. By the arrangement of the defendant's road, it was necessary for the plaintiff to cross the the track in order to reach the train which he was about to take, and for which the defendant had sold him a ticket. Under these circumstances, he had a right to rely, to some extent, upon the giving of proper and usual signals of danger, or other suitable warning, in case of the approach of a train; and the mere fact that he did not look to see if a train was approaching is not, under the circumstances, conclusive of a want of due care on his part. Gaynor v. Old Colony & N. Ry. Co., 100 Mass. 208, 213; Chaffee v. Boston & L.R. Corp., 104 Mass. 108; Mayo v. Boston & M.R.R., 104 Mass. 137-141. There was testimony to the effect that the plaintiff was standing still upon the platform at the moment of the accident. We cannot say that the step was not broken before this time, or that it was not projecting beyond the side of the car, or that the plaintiff was not hit in consequence of such projection. It is not made certain by the testimony that he was on the point of stepping down from the platform upon the track. Certainly he was where he had a right to be, unless, at that particular moment, he was guilty of a want of due care in failing to look out for the train; and, inasmuch as the defendant negligently omitted to give him such due and proper warning as he had a right to expect, the question of his due care, under these circumstances, was properly submitted to the jury. Exceptions overruled.
NOTE.
For full discussion of the question of liability of railroads for negligence causing injury at crossings, and also of that of contributory negligence, see Cincinnati, H. & I.R.R. v. Butler, (Ind.) 2 N.E.Rep. 138, and note, 144.
The failure to blow the whistle and ring the bell before crossing a highway is such statutory negligence as will, in the absence of contributory negligence, render a railroad company liable for injury resulting from a collision with a wagon crossing the track; but where it clearly appears that the driver of the wagon could have prevented the accident by using his eyes in looking, and his ears in listening, for the approaching train, there can be no recovery. Williams v. Chicago, M. & St. P. Ry. Co., (Wis.) 24 N.W. 422.
The railroad track is a warning of danger to those who go upon it, and persons about to cross it are bound to recognize the danger, and make use of the sense of hearing as well as sight; and if either cannot be rendered available, the obligation to use the other is the stronger, to ascertain, before attempting to cross it, whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly or carelessly upon the track, without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence. Mynning v. Detroit, L. & N.R. Co., (Mich.) 26 N.W. 514.
It is the duty of a railroad company to give signals of warning, at crossings, to travelers on public highways, although none are required by statute, and an habitual neglect of such duty is an indictable nuisance. Louisville, etc., R. Co. v. Com., 13 Bush, 388.
A traveler about to cross a railroad is not relieved from the duty of looking both ways by the omission...
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