260 Mass. 28 | Mass. | 1927
This is an action to recover for the conscious suffering and death of the plaintiff’s intestate, Michael Lenihan, who was three years and six months old when he
In the first count the plaintiff alleged, in effect, that the intestate, while travelling on the highway, crossing the defendant’s tracks, was struck and killed by the engine and .cars of the defendant, by reason of its negligence in operating the railroad and by reason of the carelessness of the defendant’s servants while engaged in its business. The second count is to recover for conscious suffering. The answer to these counts alleged that the death and conscious suffering of Michael Lenihan were due to his carelessness or the carelessness of the person in whose charge he was. The third count is based on G. L. c. 160, § 232, the plaintiff contending that the statutory signals required by G. L. c. 160, § 138, were not given. At the close of the evidence, a verdict for the defendant on the first and second counts was ordered on the ground that Mrs. Lenihan, who at the time of the accident had the custody of the child, was guilty of contributory negligence. The plaintiff excepted to this ruling. The defendant’s motion for a directed verdict under the third count was denied. On this count the jury found for the plaintiff and the defendant excepted. We will first consider the defendant’s exceptions.
G. L. c. 160, § 138, requires every railroad corporation to place on each locomotive engine a bell and whistle, such bell to be rung or “at least three separate and distinct blasts of such whistle sounded at the distance of at least eighty rods from the place where the railroad crosses upon the same level any public way . . . [and] such bell shall be rung or such whistle sounded continuously or alternately until the engine has crossed such way.” The sounding of the whistle was dispensed with at this particular crossing under the authority given in G. L. c. 160, § 139.
The train that struck the plaintiff’s intestate was made up of a locomotive engine and two passenger cars which ran between two stations in Lawrence. It started from North Lawrence and was proceeding toward South Lawrence when the accident happened. The point from which the train started was less than eighty rods from the highway grade
Mrs. Lenihan testified that as she approached the crossing she was walking; that she was pushing a sled; that her son David, about two years old, was in a box on the sled and that her son Michael was walking by her side; that the gates were up; that she did not hear the whistle and she did not hear the bell; that she heard the sound of the engine when she was between the two tracks; and that her hearing was good. One LaTraverse testified that he saw Mrs. Lenihan “just going across onto the first track,” that “he did not hear any bell ringing.” This was evidence for the jury that the bell was not rung. It was said in Slattery v. New York, New Haven & Hartford Railroad, 203 Mass. 453, 457, where the cases are collected, quoting from Menard v. Boston & Maine Railroad, 150 Mass. 386, 387: “Ordinarily, all that a witness can say, in such a case, when called to prove that a bell was not rung, is that he did not hear it. Such a statement, with no accompanying facts, is merely negative, and of no value as evidence. ... A witness may be in any conceivable attitude of attention or inattention, which will give his evidence value, or leave it with little or no weight; but where his position is such that the sound would have been likely to attract his attention if the bell had
It is further contended that Mrs. Lenihan was guilty of gross negligence which contributed to the accident. The burden was on the defendant to show this. When she entered upon the crossing the gates were up. She could not rely exclusively on this fact, but it was a circumstance to be considered in passing on her gross negligence. As she was upon the crossing, if the bell were not rung and she was close to a place of danger when she heard the train for the first time and then saw the light upon the engine, and considering further the fact that she had two children in her care, it was for the jury to say whether this defence of gross negligence was established. We cannot say that it was made out as matter of law. Copley v. New Haven & Northampton Co. 136 Mass. 6. Doyle v. Boston & Albany Railroad, 145 Mass. 386. Sullivan v. New York, New Haven & Hartford Railroad, 154 Mass. 524. LaFond v. Boston & Maine Railroad, 208 Mass. 451.
The plaintiff excepted to the ruling of the judge in directing a verdict for the defendant on the first and second counts. A railroad crossing is a place of special danger. A traveller
Defendant’s exceptions overruled.
Plaintiff’s exceptions overruled.