Warren v. Boston & M.R.r.

• Decision Date: 24 May 1895
• Parties: WARREN v. BOSTON & M.R.R. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 484

40 N.E. 895

WARREN v. BOSTON & M.R.R. et al.

Supreme Judicial Court of Massachusetts, Hampshire.

May 24, 1895

COUNSEL

W.S.B Hopkins, John B. O'Donnell, and Frank B. Smith, for plaintiff.

Wm. G Bassett, for defendant Boston & M.R.R. Robinson & Robinson for defendant New York, N.H. & H.R. Co.

OPINION

FIELD, C.J.

This is an action of tort for personal injuries, originally brought against the Connecticut River Railroad Company, the New York, New Haven & Hartford Railroad Company, and the Boston & Maine Railroad. The plaintiff discontinued as to the Connecticut River Railroad Company. The court, after the evidence was all in, directed a verdict in favor of the New York, New Haven & Hartford Railroad Company, and submitted the case against the Boston & Maine Railroad to the jury, who returned a verdict for the plaintiff. Main street, in Northampton, runs nearly east and west, and is crossed at grade by the tracks of the Boston & Maine Railroad and the New York, New Haven & Hartford Railroad Company, which run nearly north and south. There are two gates, one on the east side of all the tracks, and one on the west side. The distance between the gates is 84 feet. The gates were raised and lowered by means of a wheel in the gate house by a gateman employed and paid by the Boston & Maine Railroad, one-half of whose wages were paid to that company by the New York, New Haven & Hartford Railroad Company. The plaintiff, with his wife, was driving in a buggy on the street across these tracks when the gates were lowered by the gateman, and his buggy was hit by a train of the Boston & Maine Railroad, running on one of its tracks. The exceptions are by the Boston & Maine Railroad.

The first exception is to the ruling of the court directing a verdict in favor of the New York, New Haven & Hartford Railroad Company. We do not think that this ruling is open to exception on the part of the Boston & Maine Railroad. No question of liability of one of these railroad companies to the other was being tried, and no issue of this kind was raised by the pleadings, or was before the court. The two defendants were not adverse parties. If both companies were liable to the plaintiff, he could have sued both or either separately, and neither could have complained. If there should be a judgment on the verdict in favor of the New York, New Haven & Hartford Railroad Company, this could not be pleaded as res adjudicata in a suit by the Boston & Maine Railroad against that company for contribution, if the Boston & Maine Railroad is compelled to pay the judgment entered on the verdict against it. We, of course, express no opinion whether a suit for contribution lies between joint tort feasors in such a case as this. Buffington v. Cook, 35 Ala. 312; Harvey v. Osborn, 55 Ind. 535; McMahan v. Geiger, 73 Mo. 145; Beveridge v. Railroad Co., 112 N.Y. 1, 19 N.E. 489; Bigelow, Estop. (5th Ed.) p. 101; Wilson v. Mower, 5 Mass. 407; Dent v. King, 1 Ga. 200.

The next exception is to the refusal of the court to direct a verdict in favor of the Boston & Maine Railroad. There was evidence for the jury that, when the plaintiff entered upon the crossing, the gates were up; that he looked both ways; that there was no sound of any whistle, and some evidence that no bell was heard; and that the first notice he had of any danger was when the gates began to be let down after he was part way across the tracks; that he got across all the tracks, and cried out, "For God's sake, raise the gates!" that the gate keeper did not raise it; that he turned his hoarse and buggy to the north, on the space between the easternmost track and the gate, when the train went by, and hit the hind wheel of the buggy next the track; and that he was either thrown out or jumped out. There was, we think, some evidence for the jury of due care on the part of the plaintiff, and of negligence of the gate keeper, who was the servant of the defendant. Merrigan v. Railroad Co., 154 Mass. 189, 28 N.E. 149.

The next request is as follows: " 'That for mere risk peril, mental suffering, and fright, and their consequences, the defendant was not responsible if there was no physical or bodily injury,'--which the court declined to give, subject to exception." The ruling was "that for mere fright or risk the law allows no recovery. But the plaintiff says that there was something beyond mere fright or risk or peril. He says that the defendant in effect shut him in, within the gates; by its negligence, confined him within the gates; and that, while he was there, the train of the defendant struck his carriage, and he was thrown out upon the ground. If you should find that there was a tortious act on the part of the defendant, then you may take into account, as part of the damage, that the plaintiff is entitled to recovery, if at all, for fright and mental suffering which he underwent, if he underwent any at all. It may be used to enhance damages,--fright caused by nervous shock,--but, if there was nothing more than a mere fright, peril, risk, then the plaintiff would not be entitled to recover damages for that. Suppose a person should go across a crossing. Suppose there was a flagman there, and there should be nothing to give any warning. Suppose the person should go across, and the train should come, and he should get across safely,--not be hit. He might be subjected to a fright, and there would be no recovery for nervous shock. But if there was a tortious act, such as is complained of here, then you should take into account the fright and the nervous shock and the results that follow." To this ruling the defendant excepted. The defendant critcises the phrase "tortious act," as used by the court in this ruling. We think that the meaning of this phrase in the connection in which it is used is that if the defendant's train struck the carriage...