195 Mass. 202 | Mass. | 1907
These are actions of tort to recover damages alleged to have been sustained by a collision, at a grade crossing on Elm Street in Amesbury, of a train of the defendant with a top buggy owned by the plaintiff Agnes, who seeks to recover damages to property, and being driven by the plaintiff John, who sues for personal injuries. A verdict was returned for the plaintiff in each case. The cases come before us on exceptions to the refusal of the Superior Court to grant certain rulings requested by the defendant. There was testimony tending to show that John A. Fitzhugh (who will hereafter be referred to as the plaintiff) had been a physician in practice for many years in the town where the accident occurred, was familiar with the crossing, having often passed over it, and was in the full possession of his faculties except that he had no sight in his left eye. Just before twelve o’clock in the forenoon of a cold and windy December day, he was driving along Elm Street toward this crossing with a horse which, although kind in other respects, was afraid of steam cars. The grade of the street approaching the crossing was slightly descending, until within one hundred and fifty to two hundred feet of the crossing, when it began to rise; the railroad crossed Elm Street at an acute angle, and the plaintiff was driving toward the crossing on the acute side of the angle; as he approached the crossing his view was considerably obstructed at some points by buildings and trees. Until he came within one hundred and fifty to two hundred feet of the crossing he was driving about seven miles an hour and looked ahead to see or hear any train; he then slacked up and leaned forward and looked to ascertain if he could see or hear anything
As to whether the statutory signals were given, the evidence was conflicting. The plaintiff, however, testified that he was lis
Railroad, 184 Mass. 344. There were indications that, although the collision occurred at the side of the locomotive a few feet behind the pilot, this may have arisen from the failure of the defendant to give due warning of the approach of the train, so that the plaintiff could not seasonably control his horse in such a way as to avoid injury. Pollock v. Eastern Railroad, 124 Mass. 158. There was conflicting evidence as to the negligence of the flagman, and it was a question of fact for the jury.
Hxeeptions overruled.
The case was submitted on briefs.