210 Mass. 179 | Mass. | 1911
The jury upon conflicting evidence having specially found that' the signals required by St. 1906, c. 463, Part II, § 147, were not given, the defendant relies only upon the defense, that as matter of law the plaintiff was grossly or wilfully negligent.
The night was dark, but the plaintiff testified, that he could see the way as he drove along in his buggy with a tired, gentle horse moving no faster than a slow walk. He knew that the highway crossed the railroad at grade, and on his approaching the crossing he looked and listened for passing trains, but, not seeing or hearing a train or receiving any warning from bell or whistle, he drove on to the track. It was only after the horse had passed to the track that, suddenly seeing the headlight of the engine and realizing his peril, he urged him forward with the whip. But instantaneously the engine struck the team, injuring the plaintiff and damaging the horse, harness and carriage. We fail to discover in his narration of the circumstances anything tending to show a disposition to take the chance of getting safely over without regard to the movement of trains. The plaintiff
The burden of proof rested on the defendant, and, if it be assumed that the request which was refused, “ that there was not sufficient evidence to warrant the jury in finding that the plaintiff was in the exercise of legal care,” raised the question argued, it was open to the jury to find on the plaintiff’s testimony that his conduct was consistent with ordinary caution, or at least that he was not grossly careless. Clark v. Boston & Maine Railroad, 164 Mass. 434. Doyle v. Boston & Albany Railroad, 145 Mass. 386. McDonald v. New York Central & Hudson River Railroad, 186 Mass. 474, 479. Brusseau v. New York, New Haven, & Hartford Railroad, 187 Mass. 84. Slattery v. New York, New Haven, & Hartford Railroad, 203 Mass. 453, 459.
Exceptions overruled.
