| Mass. | Nov 25, 1903
The defendant’s theory of this accident is that the whistle and gong of the electric car were sounded as required by law, that at a time when the view of the third rail track was obstructed by the freight train and by the smoke from the engine so that the plaintiffs could not see whether or not an electric car was approaching, and while the noise of the train was so great as'to lessen very much the chances of hearing the sound of the signals, the plaintiffs, without waiting for these temporary hindrances to sight and hearing to disappear, and indeed without looking or listening, entered upon the crossing and attempted to pass over it immediately after the caboose of the train had cleared the highway. It must be said that there was much evidence direct and indirect to support this theory, and it might reasonably have been expected that the jury would adopt it. Upon such a theory a verdict for the defendant would have been the necessary result.
But it must also be said that, if the evidence for the plaintiffs was believed, the jury were warranted in rejecting this theory. The crossing was in the State of Connecticut, and, in accordance with the law of that State, the jury were instructed in substance that the defendant could not be found negligent if the whistle and gong of the electric car were sounded as required by the statutes of that State. Upon the question whether they were so sounded, the evidence, as is quite usual in cases of this nature, was conflicting, witnesses called by the defendant positively testifying that the signals were given and witnesses called by the plaintiffs testifying that they listened for the sounds and did not hear them. The evidence on this question need not be rehearsed in detail. It is plain that under our decisions it raised a question of fact for the jury. In this respect the case is clearly distinguishable from cases like Tully v. Fitchburg Railroad, 134 Mass. 499" court="Mass." date_filed="1883-03-06" href="https://app.midpage.ai/document/tully-v-fitchburg-railroad-6420911?utm_source=webapp" opinion_id="6420911">134 Mass. 499, and Subbard v. Boston & Albany Railroad, 159 Mass.
The more difficult question is whether the evidence was sufficient to warrant the finding that the plaintiffs were in the exercise of due care. Many of the facts are not in dispute. The four plaintiffs were in an open “ canopy top wagon,” which with the single horse attached had been hired at a livery stable by Slaney for that ride; and he was driving. There were two tracks at the crossing, the southerly being used only for the cars propelled by steam and the northerly, called the third rail track, being used only for the electric cars. A little after nine o’clock in the summer evening the plaintiffs were in the vicinity of this crossing; and, as they were approaching it from the south and were opposite the house of one Davitt, which was about two hundred and fifty feet from it, they observed a west bound freight train approaching it from the east. After the train had passed over, Slaney drove to the crossing, and as he reached the northerly track his team was struck and overturned by an electric car which came from the west at a speed of about twenty-five miles an hour. Going westerly from the crossing, the grade of the track ascends, and the engine after passing the crossing emitted considerable smoke which settled upon the third rail track, thus more or less obscuring the plaintiffs’ view. Slaney was familiar with the crossing and knew that an electric car was scheduled to reach it from the west shortly after nine o’clock. He testified however that at the time he thought it was hardly time for the car to reach there. Both the highway and the railway tracks were above the surface of the adjacent ground, and to one standing in the highway there were no permanent objects to obstruct the view of the tracks for a distance of several hundred feet either side of the crossing. The evidence introduced for the plaintiffs tended to show that they stopped opposite Davitt’s house “ two minutes or so ” ; that during that time the freight train was passing the crossing, and that they were looking up and down the track and listening for signals; that at that time
Under all the circumstances of the case, the question whether the plaintiffs were in the exercise of due care in approaching the crossing and in attempting to cross it without waiting for the smoke to disappear, was for the jury. The casé must stand with cases like Randall v. Connecticut River Railroad, 132 Mass. 269" court="Mass." date_filed="1882-03-02" href="https://app.midpage.ai/document/randall-v-connecticut-river-railroad-6420532?utm_source=webapp" opinion_id="6420532">132 Mass. 269,
Exceptions overruled.