252 Mass. 233 | Mass. | 1925
This is an action of tort to recover for damage caused to the plaintiff’s automobile, which was struck by one of the defendant’s southbound freight trains near Canal Street, north of Medfield Junction, where that street crosses the defendant’s tracks at grade. On the night of May 18, 1922, the plaintiff, who was not familiar with the locality, instead of driving on the planking of the crossing, drove to the north of the tracks, about the length of the automobile, when one of its rear wheels caught upon the rails. The automobile then swung around, with the headlights facing Framingham, and became stalled. This happened about ten o’clock. The plaintiff attempted to remove the automobile from the track, but was not successful, and left it in this condition. About three quarters of an hour later, the engine of the freight train which had left Framingham at twenty minutes past ten, struck the automobile and demolished it. The plaintiff contends that the engineer of the locomotive was negligent.
The engineer testified that the night in question “was a bad night,” “it was raining hard, . . . the rail was wet and slippery”; that his train consisted of twenty-nine cars, and as he approached the crossing he was moving at a speed of thirty miles an hour; that at the whistling post he saw “the reflection of the lights,” and dimmed the fights on his engine thinking it was a train approaching on the northbound track; that as he got around the curve he saw that the fights were not on the southbound track, but that owing to the wind and storm, it was difficult to tell whether the fights were on the crossing; that he ‘ ‘ could not tell whether or not they were following the southbound track”; that he applied the emergency brakes as a precaution; that he was then eight or nine hundred feet from "the crossing; that there was nothing more he could do to stop the train; that he did everything possible; that he made “a good stop” a hundred and fifty or two hundred feet south of the crossing; and that the steps of the engine struck the automobile.
The whistling post was about twelve hundred and ninety-eight feet from the Canal Street Crossing, but the curve ended about eleven hundred and ninety feet from that point;
Hunt v. Boston & Maine Railroad, 250 Mass. 434, is to be distinguished. In that case the tracks were straight for a distance of thirty-nine hundred and forty feet. When the automobile stopped, the train was in sight that distance to the east. The flagman on the crossing gave a stop signal to the engineer by waving his red lantern. The engineer answered this signal when seven hundred and fifty feet or eight hundred feet from the crossing. In the case at bar no attempt was made by the plaintiff, or any one, to warn the engineer that the track on which he was moving was obstructed. He did not know that the obstruction was on this track, and as soon as he realized that there might be danger, he applied the brakes and did all that he could to
Without considering the question of the plaintiff’s due care, or the question whether he was a trespasser, as there was no evidence of the defendant’s negligence the court was right in directing a verdict for the defendant.
Judgment for the defendant on the verdict.