245 Mass. 139 | Mass. | 1923
This is an action to recover for personal injuries received by the plaintiff at a grade crossing on Lynn Street in Malden. He was sixty-one years of age, and totally deaf at the time of the accident. There are no gates at the crossing, but a flagman is maintained there by the defendant.
The plaintiff lived on Revere Street in Malden, which street intersects with Lynn Street; he testified that it would take him two and one half minutes to walk from his house to the crossing; that he intended to go to Boston on an electric car that was on the opposite side of the crossing from where he lived; that the train which struck him was bound for Boston and was scheduled to stop at Linden Station which is about one hundred and fifty or two hundred feet from the crossing; that when he came down Revere Street, and just before he turned into Lynn Street, he looked and saw no train coming; that he went down Lynn Street, and before he got to the flag house, he attempted to cross the track; that before he started he did nothing; that he “ was going right across the track;” that he turned around when about forty feet from the track and looked for the flagman but did not see him. The foregoing is substantially his entire testimony; he gave no further particulars as to where he was with reference to the track or the circumstances respecting the accident.
Several other witnesses, including the flagman, testified that they saw him before and at the time he. was struck by
Several witnesses testified that the flagman stood at the crossing with a stop signal in his hand as the plaintiff undertook to cross the track. Even if this testimony were not believed, still the latter could not wholly rely on the flagman’s absence, and assume that it was safe to cross without taking reasonable precautions to determine whether he could safely pass over. Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, 395. Upon his own testimony, it appears that he did nothing to determine whether a train was approaching except to look when he was forty feet from the track. It is manifest that in these circumstances his attempt to cross would not warrant a finding that he exercised the care of an ordinarily prudent
The presumption created by St. 1914, c. 553, did not require that the present case be submitted to the jury. Duggan v. Bay State Street Railway, 230 Mass. 370. Pigeon v. Massachusetts Northeastern Street Railway, supra. The circumstance that the plaintiff was “ totally deaf ” and could not hear the signals or the noise of the approaching train required him to be more alert in the use of his other senses. Robbins v. Springfield Street Railway, 165 Mass. 30. Hall v. West End Street Railway, 168 Mass. 461. Adams v. Boston & Northern Street Railway, 191 Mass. 486. Keith v. Worcester & Blackstone Valley Street Railway, 196 Mass. 478. It does not appear that there was anything to distract his attention from the train of which he had an unobstructed view for-a long distance before he reached the crossing; nor is there any excuse shown for his failure to see it, although he could not hear its approach. His infirmity of hearing imposed upon him a more imperative duty actively to exercise his other senses to protect himself from harm. The undisputed evidence shows that if he had looked as he came to the crossing he would not have been injured. The only reasonable inference is that in hurrying to take the electric car, he reached the track as the engine was passing over the crossing and he collided with the side of the engine near the driving wheels. Although he testified, he gave no account. of the way in which he came in collision with the engine, but called as a witness the flagman, who testified that the plaintiff “ came in contact with the engine just back of the
Exceptions overruled.