164 Mass. 424 | Mass. | 1895
The presiding justice could not properly direct a verdict for the defendant in either of these cases. There was evidence in favor of the plaintiff upon the question whether he was in the exercise of due care. The evidence tended to show that the crossing on which he was injured was very dangerous. As the highway and the railroad approach each other going northward toward the crossing, they run for a considerable distance almost in the same direction, and a part of the way a house and other objects make it impossible for a traveller on the highway to see a coming train. The civil engineer called by the defendant testified that at a point southerly on the highway one hundred feet from the nearest rail as you approach the crossing, you can see down the track to the southward five hundred feet, and that at a point fifty feet farther from the crossing for a distance of three hundred feet
The speed at which a train may be run without negligence depends upon the dangers attendant upon running it. Upon a good road with proper equipments, over which there are no crossings where persons are liable to be in peril, it may safely be run very fast; but in a thickly settled town where there are frequent grade crossings of streets at which the view of the track on each side is obstructed by houses, it would be negligent to run rapidly. In view of the nature of this crossing and the
It cannot be said that the failure of the electric bells to ring at the approach of the train was not evidence of negligence of the corporation. The request to rule to that effect was made in the case of the plaintiff suing personally, and in that action the defendant was liable for the negligence of its servants, to the same extent as for its own. The evidence tended to show that, if the apparatus had been kept in proper condition, the bells would have rung as the train approached. Their unexplained failure to ring was therefore some evidence of negligence on the part of the corporation or its servants. White v. Boston & Albany Railroad, 144 Mass. 404. Mahoney v. New York & New England Railroad, 160 Mass. 573. Hennessy v. Boston, 161 Mass. 502.
The evidence in regard to the care of the boy of ten years of age, who was the plaintiff’s grandson and was driving the pony team immediately behind the plaintiff’s wagon, is very slight, but we are unable to say that there was nothing to submit to the jury on that point. It appears that he was close behind the plaintiff’s wagon, and the circumstances warrant an inference that he was expected to be governed in his conduct to some
All the rest of the defendant’s requests for instructions which were refused by the court, so far as they were correct in law, called for specific directions in regard to possible findings from particular parts of the testimony upon a single issue. It is largely a matter of discretion for the presiding judge as to how far he will discuss different phases of the testimony upon a particular subject and give specific instructions, each founded upon only a part of the testimony bearing upon the subject. If he gives full and sufficient instructions, which enable the jury to understand the law applicable to all branches of the case, it is not a ground of objection that he declines to take each fragment of the testimony and to state a conclusion of law applicable to a possible finding founded upon it. McDonough v. Miller, 114 Mass. 94. Tatterson v. Suffolk Manuf. Co. 106 Mass. 56. Gunnison v. Langley, 3 Allen, 337. Murray v. Knight, 156 Mass. 518. Neff v. Wellesley, 148 Mass. 487. In this case the instructions upon these subjects were full and clear, and the defendant has no reason to complain of them.
In the action by Hicks as administrator the defendant requested the court to instruct the j ury as follows : “ There is no allegation in the first count on which a verdict can be rendered for the plaintiff. The count does not allege any carelessness or negligence of the corporation, nor any unfitness or gross carelessness of its servants or agents.” The stenographer’s report of the charge upon this part of the case leaves us in doubt as to what was said by the judge in regard to it. The exceptions
It is contended that the declaration in this action is defective in not alleging that the plaintiff’s wife left next of kin for whose benefit there might be recovery under the statute: See Commonwealth v. Eastern Railroad, 5 Gray, 473. But this exception is not open to the defendant in this court, inasmuch as it was not taken in the court below.
It is also contended that this action must be treated as not brought under the statute, but at the common law, inasmuch as neither count of the declaration contains allegations which ought to be found in an action under the statute. But the common law recognizes no right of action in a case of this kind, and, although the counts are imperfect, we think the action must be deemed to have been brought under the statute.
We are of opinion that the withdrawal from the jury of the evidence of the action of the selectmen in writing a letter to the defendant about seven months before the accident, requesting it to maintain a flagman and lights at the crossing, leaves the defendant without a legal ground of objection to the admission of it. It appears from the charge, that at the time of its admission the court expected that it would be followed by other
If there was error in the original instructions in regard to gross negligence the error was corrected, and the jury were properly instructed soon afterwards. In the first case, the exceptions must be overruled, and in the second case, they must be sustained. So ordered.
The engineer testified that the train ran three or four hundred feet beyond the crossing before it was stopped.