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

• Decision Date: 26 October 1891
• Citation: 28 N.E. 911,154 Mass. 524
• Parties: SULLIVAN v. NEW YORK, N.H. & H.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 524

28 N.E. 911

SULLIVAN v. NEW YORK, N.H. & H.R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 26, 1891

COUNSEL

J.B. Carroll, for plaintiff.

Robinson & Robinson, for defendant.

OPINION

BARKER, J.

The plaintiff, a foot traveler on the highway, was struck by a locomotive at a grade crossing. The accident happened on a clear summer day, about 11 o'clock in the forenoon. The railroad had, within a short time before the accident, been raised so as to be about three feet higher than the level of the sidewalk on which the plaintiff approached. The work of grading was unfinished, and the crossing was in a broken and poor condition, with one plank on each side of the rails. The ground was rough, so that teams had to walk across. There were three railroad tracks at the crossing, and the locomotive was on the middle track, coming from north to south. The plaintiff's line of travel was diagonally across the tracks. From the end of the sidewalk to the tracks the space was filled with soft gravel. The height of the car windows from the ground was seven feet, and from the level of the sidewalk ten feet. A building and the branches of a butternut tree obstructed the view from the sidewalk. These were the only obstructions, looking northward, to a bridge, a distance of 985 feet from the place of the accident. After a person passed onto the line of the railroad from the sidewalk there was no obstruction to the view except the branches of the tree, and, after reaching the nearest track, there was no obstruction. A person approaching the railroad in the plaintiff's line of travel could see in a clear line of vision from a point 42 feet from the nearer rail of the middle track 352 feet northward, at 321/2 feet, 985 feet; at 281/2 feet, 1,358 feet; and at 231/2 feet, 1,468 feet. There was no gate or flagman at the crossing. The plaintiff lived in the vicinity, was familiar with the locality, and accustomed to pass over the crossing. She was between 60 and 70 years of age, of ordinary intelligence, and possessed of good sight and hearing. The declaration was in two counts the first under Pub.St. c. 112, § 213. At the close of the evidence the court ruled that the plaintiff could not recover on the second count, which was at common law, and the jury found a verdict for the plaintiff on the first count, and found specially that the defendant neglected to give the signals required by the statutes. The question raised by the bill of exceptions is whether the court was justified in submitting the case to the jury upon the first count, or whether, upon all the evidence, it appeared as matter of law that the plaintiff, in addition to a mere want of ordinary care, was guilty of gross or willful negligence.

In addition to the facts above stated, there was evidence tending to show that, if the plaintiff had looked at all before going on the track, she could have seen the approaching train a quarter of a mile away; that she was familiar with the passing of trains, and had often before run across ahead of the train; that she did not look up the track at all; that shortly before she was struck by the locomotive and before he had entered upon the middle track, and while she was yet in a place of safety, she had heard the sharp "Toot! toot! toot!" of the engine, and knew that the train was coming at speed, and, notwithstanding this attempted to cross in front of it. There was also evidence tending to show that before she left the sidewalk the train was actually in full view, approaching the crossing; that when she heard the danger whistles she looked up directly at the train, and hurried up to get across, and tried to walk faster, and started to run ahead of the train; that when the danger whistle sounded she was between the east and middle tracks; that she fell down before she was struck, and fell on the west rail of the middle track; that if she had stood still when the danger whistle sounded she would have been safe; that she stumbled and fell on her knees and elbows, between the two rails of the middle track, and as she was trying to rise the train struck her. One of the plaintiff's witnesses testified that he "heard the danger whistles, turned his eyes to the crossing, and saw the old lady; that her hands were up in this manner, [showing;] and she made one step, and down she went, and recovered herself to the extent of getting partially on her hands and knees." The plaintiff herself testified that before she went on the...