293 Mass. 334 | Mass. | 1936
These actions of tort, tried together, arise out of a collision between a taxicab and a freight car attached to the defendant’s train which was crossing over the
It does not appear from the record that any question of pleading was raised at the trial, nor is any such question reported specifically. It is considered that the cases were intended to be reported for the determination of the questions whether the evidence was sufficient to warrant a verdict in favor of any one or all of the plaintiffs under a count at common law for negligence, or under a count based on the provisions of G. L. (Ter. Ed.) c. 160, §§ 138, 232, for failure to give the statutory signals of sounding a whistle and ringing a bell on a locomotive engine before crossing a public way. Horowitz v. State Street Trust Co. 283 Mass. 53, 56, 57. Taking the evidence in the report in the light most favorable to the plaintiffs, the jury could have found that the accident occurred in the town of Northborough, in this Commonwealth, at about four o'clock in the morning of September 7, 1929, at the public railroad grade crossing of the defendant’s railroad and the main highway between
The plaintiff Vigneault testified that on the night of the accident Dunne and he had passed over this same crossing in the same taxicab on their way to Waltham, returning to Worcester over the crossing at about 1 or 2 a.m.; that on the second trip to Waltham they went through the town of Shrewsbury and then into the town of North-borough; that he was going approximately “twenty, twenty-five, thirty, thirty-five miles per hour,” and that
We are of opinion that there was no evidence which would warrant a finding of negligence on the part of the defendant. The undisputed evidence shows that, at the time the automobile collided with the car, the train was moving over the crossing, the engine and several cars having passed over it. It is plain that after the locomotive passed over the crossing the train had the right of way. It has been held by this court in several decisions that, where a traveller on a highway ran into the side of a train standing upon a highway crossing, he was precluded from recovery. Farmer v. New York, New Haven & Hartford Railroad, 217 Mass. 158. Trask v. Boston & Maine Railroad, 219 Mass. 410. Allen v. Boston & Maine Railroad,
In accordance with the stipulations of the parties, in" the cases of the Bell Cab Company and the plaintiff Vigneault judgment is to be entered for the defendant; in the case of the plaintiff Dunne judgment is to be entered for the defendant on both counts of the declaration.
So ordered.