Garafalo v. New York, New Haven, & Hartford Railroad

| Mass. | Oct 19, 1910

Hammond, J.

Inasmuch as the questions raised are substantially the same in both of these cases, we shall discuss only the case brought in behalf of the child; and the term “ plaintiff ” will be used to designate her alone.

There was ample evidence of the due care of the plaintiff. The evidence as to whether the gates were up at the time she entered upon the crossing was conflicting, but the jury may well have found that they were up; and further, that neither in entering upon the crossing while the gates were in that position, nor in anything she did in her attempt to cross, either before or after her foot was caught, was she negligent.

The jury were instructed that there was no evidence of negligence of the defendant except possibly in two respects, namely, in the conduct of the engineer, or in that of the gateman; and the question whether there was any negligence on the part of these servants or either of them was submitted to the jury, who, in addition to the general verdict for the plaintiff, found specially that each one of these servants was negligent and that the negligence of each contributed to the plaintiff’s injury.

The defendant strenuously contends that these special findings are not warranted by the evidence and has made a strong argument in support of that contention. It must be conceded that as to each of these servants, particularly the engineer, the question of negligence is somewhat close; and the defendant may reasonably have anticipated a different conclusion on the part of the jury. We have carefully read over the evidence. As is usual in cases of this kind, it is conflicting, but we think that the jury properly may have found that the gates were up at the time the plaintiff entered upon the crossing, and remained up until her foot was caught; that while her foot was thus fastened, and while the engine was standing more than two hundred feet southerly of the crossing and about to back up over it, the gate-man put down the gates, thus indicating to the tower man that the crossing was ready for the passage of the engine, which information was communicated by signal to the engineer; that the engineer, relying upon the signal, proceeded to back over the crossing and in so doing ran over the foot of the plaintiff, inflicting upon her the injury complained of; that the gates were put down, and that the signal would not have been given by the tower man to the engineer to cross but for the lowering of the gates. In a word, that by lowering the gates the gateman gave the initial move which resulted in the starting of the engine and its passage over the crossing. They might have found further that before lowering the gates the gateman could have seen the plight in which the plaintiff then was and that the accident was due to his failure to look. Upon such findings the jury properly might have concluded that there was negligence upon the part of the gateman and that it contributed to the plaintiff’s injury.

The plaintiff contended and the jury have found that the engineer also was negligent. We are of opinion that the evidence sustains this finding; but in view of the specific findings as to the gateman it becomes unnecessary to go at length into the evidence as to the engineer. The plaintiff’s case well rests upon the findings as to the gateman, irrespective of the conduct of the engineer.

It follows that the first three rulings requested could not have . been given. The fourth and fifth, ninth and thirteenth, were given. The sixth was properly refused. Upon the evidence it was a question for the jury whether the plaintiff would have attempted to cross if the gates had not been up, or in other words whether she was not lulled into security by the position of the gates. The seventh was properly refused. There was evidence that the lowering of the gates while the plaintiff’s foot was caught set in play the train of causes which led directly to the approach of the engine. The eighth could not have been given. Omitting other obvious objections to this request it is sufficient to say that it was a question for the jury whether the gateman or engineer presumably could have known of the plight of the plaintiff or that she was unable to escape from the track. The tenth and eleventh were properly refused. The questions whether the engineer in the exercise of due care could have known of the plaintiff’s presence upon the crossing, or that she was unable to escape therefrom, were for the jury. From what has been said it is apparent that the twelfth could not have been given.

The defendant has criticised that part of the charge in which the judge defines the standard of care required of the defendant. It may be doubted whether, taking the charge as a whole, there is any ground for the criticism, but, whether that be so or not, the defendant took no exception to the charge and cannot raise now for the first time the question of its accuracy in this respect.

Exceptions in each case overruled.