Allen v. Boston & Maine Railroad, 197 Mass. 298

Allen v. Boston & Maine Railroad

197 Mass. 298 | Mass. | 1908

Rugg, J.

This is an action of tort for personal injuries received by the plaintiff at a crossing at grade of a highway with a single track branch of the defendant. The plaintiff was driving a pair of gentle- easily controlled horses hitched to an ordinary ice cart. He crossed the track of the defendant by an overhead bridge just south of a station of the defendant, and drove down and along the highway, which was an irregular semicircle to the northward, a distance of four hundred seven feet to the grade crossing, which was north of the station. The first half of this distance was a descending grade of five or six per cent, and the two hundred feet lying next to the grade crossing was substantially level. The cart was partially loaded with ice. The plaintiff trotted his horses down the hill, but they walked along the level space until they were at the crossing, when they suddenly broke into a trot, and immediately the wagon was struck by a train coming from the south, and the plaintiff was injured. He is bound to show that he was in the exercise of due care. The accident occurred at about half-past twelve on the afternoon of a bright day in May. There were no other travellers on the highway, except that a flagman of the defendant, one of whose duties was to flag this crossing, according to the plaintiff’s testimony was running behind his vehicle.

The plaintiff was familiar with the neighborhood and crossing. He knew a train was due at about the time of the accident, but thought it had passed. There was no dispute that, as one ap*301proached the crossing from the direction in which the plaintiff came, the only obstruction to a view of the tracks to the south, from which the train came, was the station, and that at a point forty-six feet from the crossing in the highway there was a clear view of the tracks southerly measured from the centre of the crossing, three hundred and seven feet; at a distance of thirty feet, a like view for four hundred and two feet; at twenty-five feet, for seven hundred and sixty-six feet; at fifteen feet or nearer, for sixteen hundred and seventy-nine feet. The plaintiff testified that he could easily stop his team on this road, with its load and rate of speed, within ten feet. The only evidence as to the speed of the train was that it was going about twenty miles an hour. The plaintiff testified that he looked for a train at about twenty-five feet from the crossing, but saw none. Upon this state of the evidence it is obvious that the failure of the plaintiff to see the train in time to save himself from danger was due to his’ own negligence. It was possible for him when he was in a place of safety to have looked down the track a distance far enough to have seen any approaching train. The circumstances do not show anything to distract his attention from the track, nor is any excuse shown for failure to observe that which was within view. Indeed, the noise of his own cart and load, hindering the warning that might otherwise come through his hearing, imposed upon him a greater obligation to actively use his other senses to obtain information for his security. A railroad grade crossing is universally recognized as a place of great danger. While there is no hard and fast rule in this jurisdiction that a traveller approaching such a crossing must invariably stop to look and listen, yet he must actively and intelligently exercise whatever faculties may reasonably be expected to give warning of impending danger. Where the admitted physical surroundings of a crossing, time and atmospheric conditions are such as to show ample opportunity for a traveller to know whether a moving train is near in time to protect himself from danger, it is not enough for him to say that he looked but failed to see an approaching train. The inference is irresistible that such looking is careless. Roberts v. New York, New Haven, & Hartford Railroad, 175 Mass. 296. Fitzgerald v. Boston Elevated Railway, 194 Mass. 242. Beirne v. Lawrence & *302Methuen Street Railway, ante, 173. A traveller is not obliged to look where sight is so obscured as to afford him no intelligence, nor to listen if conditions are such that there can be no hearing, because under these circumstances he can gain nothing thereby. But when sight or hearing will tend to give information which can be utilized for his safety, then he must use these faculties.

The undisputed circumstances of tthe present case show that if the plaintiff had exercised ordinary precaution he might have seen the approaching train in time to avoid harm. His failure to do so made it the duty of the trial court to grant the second prayer of the defendant. Raymond v. New York, New Haven, & Hartford Railroad, 182 Mass. 337. Hamblin v. New York, New Haven, & Hartford Railroad, 195 Mass. 555. Cases like Manley v. Boston Maine Railroad, 159 Mass. 493, where the burden rests upon the defendant to prove gross negligence on the part of the traveller, have no bearing upon the present case.

Exceptions sustained.