Griffin v. Hustis

234 Mass. 95 | Mass. | 1919

De Courcy, J.

The plaintiff was injured on Sunday morning, October 14, 1917, near a crossing at grade of the Boston and Maine Railroad over the highway known as the Mohawk Trail, in the town of Charlemont. He was one of a party of six who had engaged David Bordo, the owner of a seven passenger automobile, to take them from Pittsfield to Camp Devens and back for $30. They left Pittsfield at 4.30 A. M. At about six o’clock they were moving toward the crossing from the south, when a freight train approached from the east. Bordo, in order to avoid an imminent collision, turned his car off the road to the right, and it came to a stop against a pole which was about ten feet from the first track. The plaintiff, who was riding on the front seat, was thrown forward and injured.

1. There was evidence from which it could be found that a view of the track toward the east was obstructed by a tree covered hill, so that one could see the track for a distance of only a hundred and eighty to two hundred feet when he was one hundred feet south of the crossing; that many automobiles passed over this route daily; that there were no gates at the crossing, and no flagman there until seven o’clock, or an hour after the accident; that the train' approached at a speed of thirty or more miles an hour, and the engine bell was not rung nor the whistle sounded. This entitled the plaintiff to go to the jury on the issue whether negligence on the part of the defendant (who was operating the railroad) contributed to the accident at this dangerous crossing. St. 1906, c. 463, Part II, § 147.- Walsh v. Boston & Maine Railroad, 171 Mass. 52, 58. Steverman v. Boston Elevated Railway, 205 Mass. 508.

2. As to whether the plaintiff personally was negligent. Apart from the due care statute (St. 1914, c. 553) there was affirmative evidence that when the automobile came almost to a stop, between seventy-five and one hundred feet from the crossing, Griffin looked to the right and the left to see if there was any train coming, and did not see nor hear anything to indicate the approach of one; and that when they had gone about fifty feet farther he again looked to the right, saw the engine and “hollered at the chauffeur there was a train coming.” Considering also that the train was moving more than forty feet a second, that the plaintiff’s view of the track was so limited, and that he had a right to rely somewhat on the skill and care of the chauffeur, the issue of the personal due care of the plaintiff was for the jury. Charles v. Boston Elevated Railway, 230 Mass. 536, and cases cited, page 540. Morrissey v. Boston & Maine Railroad, 216 Mass. 5.

3. Bordo plainly was negligent. He did not have a chauffeur’s license, and his operator’s license did not authorize him to operate his automobile for hire. St. 1909, c. 534, § 10. St. 1915, c. 16, § 5. Although the wet road made it1 difficult to stop the car, he approached this dangerous crossing at a speed of about eighteen miles an hour and did not notice the engine until his attention was called to it by the plaintiff, when he had to turn to the side of the road in order to avoid running into the train. Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392. St. 1917, c. 246, § 3. On the undisputed evidence, however, Bordo was not the plaintiff’s servant, but was an independent contractor. Winslow’s Case, 232 Mass. 458. Accordingly the plaintiff would not be concluded by Bordo’s negligence under the law of principal and agent. Tornroos v. R. H. White Co. 220 Mass. 336.

4. A closer question is whether the chauffeur’s lack of due care is to be imputed to the plaintiff. Some of the plaintiff’s testimony on cross-examination indicates "his voluntary, unconstrained, non-contractual surrender of all care for himself to the caution of the driver.” Shultz v. Old Colony Street Railway, 193 Mass. 309, 323. Strongest against him are the following questions and answers: “Q. ... Then is it fair to say that throughout this trip until the accident happened you placed your reliance on the chauffeur to look out for your safety in the driving of that car? Is that a fair statement? A. Yes, sir. —• Q. Then your look to the right and left was a mere casual look because you were relying on the chauffeur to lpok out for you. Isn’t that a fair statement? A. Well, I looked. — Q. That is as he stopped there and you, relying on him to look out for you, looked to the right and left in a casual way, didn’t you? A. More than casual. — Q. You looked to see what there was to see, didn’t you? A. I looked to see if there was any trains coming in either direction. — Q. But you were relying on Bordo to look out for you in the driving of that machine? A. Surely. — Q. Absolutely? That’s correct. A. Why, yes, he had full charge of the machine. — Q. And you relied on him absolutely to look out for you in the driving of that machine, didn’t you? A. Yes, sir.”

But the jury could say that while the plaintiff relied upon Bordo so far as the operation of the machine was involved, he did not rely entirely upon Bordo to look out for the approach of trains. ,In fact the plaintiff not only looked out for them when the automobile was one hundred feet from the crossing, but he testified that he was positive the train was not in sight when he was eighty feet, seventy feet and sixty feet from the crossing. It was he who saw it approaching when they were within fifty feet, and warned Bordo. He had a right to rely somewhat upon the experienced owner of the car to look out for the safety of himself and his passengers. On the whole evidence we can hardly say as matter of law that the plaintiff trusted his safety absolutely and wholly to the caution of Bordo, in such sense as to impute to him, and charge him with responsibility for, Bordo’s negligence. Randolph v. O’Riordon, 155 Mass. 331. Bullard v. Boston Elevated Railway, 226 Mass. 262, 264. Bailey v. Worcester Consolidated Street Railway, 228 Mass. 477. It is not argued that he should have told the chauffeur not to turn to the side of the road, when he saw the approaching train. Apparently Bordo could not then stop the machine in time to avoid a collision; and the only alternative was to turn off the road to the right. The facts bring this case within Bullard v. Boston Elevated Railway, supra, and distinguish it from the Pigeon case, where the negligence of each plaintiff was a contributing cause of his or her injury.

5. The defendant further argues that the plaintiff is precluded from recovering by reason of St. 1915, c. 16, § 5, which provides that “No person shall employ for hire as a chauffeur any person not specially licensed as aforesaid.” It is settled by Conroy v. Mather, 217 Mass. 91, that the plaintiff’s violation of the provisions of this act is some evidence of negligence. But it- could not be ruled that such negligence directly contributed to his injuries, so as to preclude him as matter of law from recovering. See Pigeon v. Massachusetts Northeastern Street Railway, supra.

6. The questions of evidence raised by the exceptions require but brief consideration. We find no reversible error in excluding the question to an alleged expert as to the proper practice in operating an automobile over a grade crossing. Assuming this to be a fit subject for expert testimony, St. 1917, c. 246, § 3, lays down the rule that governs: “Upon approaching any railroad crossing at grade the person controlling the movement of any self-propelled vehicle shall reduce the speed of the vehicle to a reasonable and proper rate, and shall proceed cautiously over the crossing.” The question to the witness McGee, on cross-examination, as to what explanation he could give for not seeing the train sooner, was at least competent to test his credibility as a witness. Plainly it was competent to ask Bordo whether he had a chauffeur’s license.

As there was error in directing a verdict for the defendant, the entry must be

Exceptions sustained.