195 Mass. 555 | Mass. | 1907
This is an action of tort to recover damages for the death of John H. Hamblin, which occurred at a highway grade
The view of the facts most favorable to the plaintiff’s contention falls short of sustaining the burden of showing due care on the part of the deceased. A grade crossing of a highway with a steam railroad is universally recognized as a place of extreme danger, where the traveller’s attention must be intelligently and actively directed to looking out for his own safety. He cannot alone rely upon the railroad and its employees to do their duty, but must actually exercise his own faculties of sight and hearing and common sense to care for himself. The deceased, who was driving, approached the crossing with his horse at a walk. He observed a light a mile or more down the track, which in the dimness of fog and darkness he thought was at a station, but though then in a position of safety he did not pause to further investigate. Nor did he open the door or window of his closed milk wagon, a vehicle itself likely to produce considerable noise, to listen for the usual crossing signal and the rumble of an approaching train. Without urging his horse out of a walk, he started across the tracks. He was boxed up in a wagon, so that he could not use the persuasion of his voice with its usual force and effect to hurry his horse, and he could only use his whip, which was on the outside of the wagon, by opening the door. When danger was imminent, it was discovered that the blanket was so caught behind the door that it could not be opened far enough to afford any relief. Nor is this a case where the circumstances are such as to excuse a traveller from exercising all his faculties. It was a crossing where there does not appear to have been any other wagon at the time. The atmospheric conditions were such that one could have heard at least with ordinary distinctness, and if there had been any reasonable effort to listen for signs of danger, there is nothing to show that it could not have been detected. It was within the power of the deceased, in the exercise of common prudence, to look and listen in such a way that he could with reasonable certainty have been enabled to see or hear the approaching train if one was within the range of sight and hearing, which is the rule laid down in Clark v. Boston Maine Railroad, 164 Mass. 434, 439. There is much to be said in favor of the view that, where one in the
The cases relied upon by the plaintiff are all distinguishable. In Hicks v. New York, New Haven, & Hartford Railroad, 164 Mass. 424, there was evidence that the driver stopped and looked and listened before attempting to cross the tracks. In Tilton v. Boston Albany Railroad, 169 Mass. 253, two people were listening, the horse was under complete control, and the flagman although in sight made no motion of warning. In Clark v. Boston & Maine Railroad, supra, and Conaty v. New York, New Haven, & Hartford Railroad, 164 Mass. 572, there were acts by the crossing tender conducing to mislead the traveller. Lamoureux v. New York, New Haven, & Hartford Railroad, 169 Mass. 338, and Brusseau v. New York, New Haven, & Hartford Railroad, 187 Mass. 84, were suits where death was alleged to have resulted from failure to give the statutory signals, and where therefore the plaintiff was not obliged to prove due care; and gross negligence of the decedent was an affirmative defence to be proved by the defendant. Upon a count for this cause in the present case the plaintiff was permitted to go. to the jury. The other cases upon which she relies are against street railway companies, where less evidence may sustain the burden of due care than upon railroad crossings.
Exceptions overruled.
“ The wagon was shut up between them and the horse, with just a place through for the reins.”