302 Mass. 578 | Mass. | 1939
The plaintiff’s intestate, George G. Emery, on September 9, 1934, left his house in an automobile “to go down to the meadows beyond the Bark Haul Road railroad crossing for the purpose of getting some wood.” This action is to recover for his death, under the provisions of G. L. (Ter. Ed.) c. 160, §§ 138, 232. At the trial it was agreed that the deceased “while driving across the tracks of the defendant on a road known as Bark Haul Road in the town of Longmeadow, Massachusetts, was struck by a railroad train [belonging to the defendant and operated in its business] on said crossing,” and as a result was killed. The only other evidence in the record that throws any light upon what the deceased was doing on the day he was killed comes from the engineer who was operating the locomotive that struck the automobile. He testified that as far as he knew he was the only person to see the accident take place; that when he was about two engine lengths away from the crossing “he saw something dive like a flash ahead of him, and saw it was an automobile”; that “when he first saw the automobile it was between twelve and fifteen feet away from the tracks and was moving; that the automobile came from his right and that his train was proceeding in a northerly direction and the automobile was going from east to west . . . that when he saw the automobile it seemed to be coming up a little bit of an incline toward the rail . . . that the automobile was in motion from the time he saw it until he hit it with the engine.”
At the close of the evidence the trial judge denied the defendant’s motion for a directed verdict and the jury returned a verdict for the plaintiff. The judge reserved leave to enter a verdict for the defendant under G. L. (Ter. Ed.) c. 231, § 120, and allowed the defendant’s motion that a verdict be so entered. The plaintiff excepted to the allowance of this motion.
The bill of exceptions provides that the exhibits are made a part of it and may be referred to. Three photo
From the photographs it is apparent that the view to the south and especially to the north along the railroad location is somewhat obscured when a traveller is approaching, as the deceased must have been, and is back from the crossing a considerable distance. But even from such a point the railroad location itself rises before the eyes of the traveller as a definite embankment with poles, bearing wires, standing above the skyline on either side of the crossing.
We think that the deceased failed to “proceed cautiously over the crossing,” as required by G. L. (Ter. Ed.) c. 90, § 15, as amended. Although there is no evidence that he had ever been on this road before, nevertheless the presence of the crossing was plainly evident to one approaching it from the east, as did the deceased, and it was apparent that the road crossed the railroad at a right angle. If the collision occurred in the manner that all the evidence tends to indicate, we think it is clear that the deceased had ample opportunity with the exercise of proper caution to observe the approach of the train and that, if he looked at all, he must have looked carelessly or must have continued on in disregard of the danger which was in plain sight. In such cases it has been held as matter of law, in a long series of decisions, both that the operator of the automobile involved has been guilty of contributory negligence and that failure on his part to comply with the statute (c. 90, § 15) has contributed to his in
In view of this conclusion, it is not necessary for us to
Exceptions overruled.