This аction is to recover for personal injury and property damage resulting from a collision at a grade crossing in Pittsfield between an oil truck driven by the plaintiff and a freight train of the defendant. The plaintiff had a verdict on his common law counts. The defendant excepts.
The accident happened March 31, 1934, at about six o’clock in the evening. Merrill Road, on which the plain
The plaintiff’s own testimony was substаntially this: It was raining and hailing, “one of those drizzling hard rains and a little bit of snow, not a hard storm, but a sleet storm.” The plaintiff allowed thе truck to come to a stop forty or fifty feet from the track. The right hand window was entirely open. One Graham, the plaintiff’s helper, who was seated at the plaintiff’s right, stuck his head out of the window, and the plaintiff also looked. He could nоt see to the right rear unless he leaned far over to the window and looked back. He leaned “as far over аs he could across Graham.” He “could see the outline of everything.” He saw two tank cars on the spur track and some barrels and oil drums in the yard of the “Gulf station” at his right in theGangle between the road and the railroad. Beyond these in the sаme general direction he saw tanks and empty oil drums ón the ground at a point on premises on the east side of the rаilroad which appears from a photograph and plan incorporated in the record to have bеen at least four hundred feet to the plaintiff’s right in the direction from which the train came, and which the defendant's engineеr testified was about five hundred twenty-five feet from the center of Merrill Road. Farther still in the same direction he saw the lights оn Dalton Avenue, which crossed the railroad more than, fifteen hundred feet north of Merrill Road. He saw no headlight and no reflection of a light on the track. His own headlights and the Gulf station yard lights were on. From the point forty to fifty feet distant from thе track where he had stopped the plaintiff continued on in second gear at not faster than seven miles an hour, looking mostly to the right. He could have stopped his truck within four feet. The nearer he got to the track the more hе “had to stretch out to look up the track because the road and track came to a point.”
Graham testified that it was “raining and hailing and very dark”; that, looking up the track to the north, he could see nothing except a few trees and the street lights and the headlights of cars on Dalton Avenue; thаt by looking backward the tanks mentioned by the plaintiff could be seen; that there was no headlight on the engine; and that hе could hear no whistle or bell.
G. L. (Ter. Ed.) c. 90, § 15, as amended, required the plaintiff to “proceed cautiously over the crossing” as well as to observe the additional requirements put upon him as the driver of a motor vehicle carrying inflammable liquids by the amendment of 1933. (St. 1933, c. 26, § 1.) If we were to leave out the elements of darkness and invisibility, it would seem plain that the plаintiff on his own testimony must be deemed to have violated this section as it has been interpreted in our decisions. In no material respect would this plaintiff stand in any better position than did the plaintiff in Klegerman v. New York, New Haven & Hartford Railroad,
But the evidence as to darkness and invisibility does not materially change the complexion of this case or take it out of the authority of those just cited. The plaintiff is bound by his own testimony as to what he could see, even though Graham’s testimony seemed to indicate that he could see less. Laffey v. Mullen,
Exceptions sustained.
Judgment for the defendant.