291 Mass. 116 | Mass. | 1935
These are actions of tort to recover compensation for personal injuries and property damage alleged to have been caused to the several plaintiffs at a grade crossing. There are two counts in each declaration, one at common law for negligence of the defendant and one under the special provisions of G. L. (Ter. Ed.) c. 160, §§ 138, 232, for failure to give the statutory signals on a locomotive engine before crossing a public way. The accident occurred at a grade crossing of a single track of the railroad with a highway. The evidence in general tended to show that a freight train of the defendant about six hundred feet in length was at the time of the collision backing over the crossing and that the automobile in which two of the plaintiffs were riding was struck by the caboose on the rear of the train. The testimony of the driver of the automobile was, in substance, that as she approached the crossing she saw the back of a train standing still, “First it was still, going the other direction .... I slowed down and then it began to move and I put on the brakes .... It was standing still when I saw it first”; that she did not know as she approached the crossing that the freight train was backing toward it; that when she first saw the train move back she would say that she was a safe distance from it; she sup
Upon the testimony already narrated we think it could not rightly have been ruled as matter of law either that the driver of the automobile was negligent or that she was violating G. L. (Ter. Ed.) c. 90, § 15, in failing upon approaching a railroad crossing at grade to reduce the speed of the vehicle to a reasonable and proper rate and to proceed cautiously over the crossing. The burden of proof was upon the defendant to prove either the contributory negligence of the driver of the automobile, G. L. (Ter. Ed.) c. 231, § 85, or her violation of the statute G. L. (Ter. Ed.) c. 90, § 15. Klegerman v. New York, New Haven & Hartford Railroad, 290 Mass. 268, 275. There are numerous cases where it has been held that the defence of a violation of statute in the operation of a motor vehicle approaching a grade crossing has been made out as matter of law. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137. Creeley v. Boston & Maine Railroad, 263 Mass. 529. Fortune v. New York, New Haven & Hartford Railroad, 271 Mass. 101. O’Meara v. Boston & Maine Railroad, 277 Mass. 315. Carcione v. Boston, Revere Beach & Lynn Railroad, 278 Mass. 357. Gaboriault v. New York, New Haven &
The plaintiffs' exceptions are sustained, the verdicts originally returned by the jury are to stand, and judgment is to be entered in each case on such verdict. Kaminski v. Fournier, 235 Mass. 51, 55.
So ordered.