Walsh v. Boston & M.R. Co.
| Decision Date | 18 May 1898 |
| Citation | 50 N.E. 453,171 Mass. 52 |
| Parties | WALSH v. BOSTON & M.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.C. Dowd, for plaintiff.
Solomon Lincoln and H.W. Ogden, for defendant.
The declaration in this case contains two counts; the first being under Pub.St. c. 112, § 212, and the second under section 213 of the same chapter. The court ruled, at the conclusion of the evidence, that the plaintiff could not recover under either count, and directed a verdict for the defendant. The plaintiff excepted to this ruling, and this is the only exception.
Under the first count, the plaintiff was bound to show that his intestate was in the exercise of due care, and that the accident happened through the negligence of the corporation or the unfitness or gross carelessness of its servants. We do not understand the plaintiff to contend that there was any evidence tending to show that the corporation was negligent. If the gate keeper gave no signal or warning of the approaching train, as there was testimony tending to show was the case, we think that the jury would have been justified in finding that he was guilty of gross negligence. Tilton v. Railroad Co. (Mass.) 47 N.E 998. But we think that the plaintiff did not sustain the burden of showing that his intestate was in the exercise of due care. If the testimony of the gate keeper is to be believed, it would tend strongly to show that the plaintiff's intestate was guilty of gross negligence. It is possible, however, that the jury might not believe the gate keeper. If that is laid one side, then there is nothing to show that the plaintiff's intestate, as he approached the crossing, looked or listened or took any precautions to ascertain whether a train was coming. It is true that he may have been misled somewhat by the absence of the statutory signals if those were not given, and by the open gates, and the want of a light, and that, if he had looked, his view of the approaching train might have been obscured by trees fences, and buildings. But whether he was misled, or whether he looked or listened, or tried to look or listen, is all a matter of conjecture. Negligence on the part of the servants of the corporation will not excuse negligence on his part ( Butterfield v. Railroad Corp., 10 Allen, 532; Tyler v. Railroad Co., 157 Mass. 336, 32 N.E. 227) and the circumstances do not appear to have been such as to excuse him from exercising the care which every traveler is bound to exercise as he approaches a railroad crossing (Chase v. Railroad Co., 167 Mass. 383, 45 N.E. 911; Merrigan v. Railroad Co., 154 Mass. 189, 28 N.E. 147; Fletcher v. Railroad Co., 149 Mass. 127, 21 N.E. 302).
Under the second count, the plaintiff was not obliged to show that his intestate was in the exercise of due care. He was entitled to recover if it appeared that the corporation neglected to give the signals required by law, and that such neglect contributed to the injury. The corporation could relieve itself from liability by showing that the plaintiff's intestate was guilty of gross or willful negligence, and that such negligence contributed to the injury. Pub.St. c. 112, § 213. The burden of proof was on the corporation to show this. Copley v. Railroad Co., 136 Mass. 6, 10. The defendant admits that the whistle was not blown, the engineer having had orders not to blow it. We think that there was evidence for the jury on the question whether the bell was rung, the statute being that the whistle must be blown or the bell rung. The circumstances attending the observation of the two witnesses whose testimony principally was relied on to show that the bell was not rung relieve it from the objection which has been found in some other cases to exist to the introduction of similar testimony. The evidence tended to show that they passed over the crossing where the accident occurred, and after having gone a short distance, their attention being attracted by the approaching train, they stopped, and turned round, and watched it as it approached the crossing. If their testimony is believed, their attention was directed solely to the...
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