| Mass. | Oct 18, 1893
For the purpose of determining these exceptions, it must be assumed that the jury were satisfied that the defendant neglected to give the signals required by Pub. Sts. c. 112, §§ 163, 213, and that such neglect contributed to the injury. In order to escape liability, it was therefore incumbent on the defendant, under the statute, to prove that the deceased, in addition to a mere want of ordinary care, was guilty of gross or wilful negligence which contributed to the injury. It is conceded on the part of the defendant that the Chief Justice, who presided at the trial, was right in submitting this question to the jury; but the defendant complains that no sufficient explanation of what would constitute gross negligence was given to the jury, and that the instructions which were requested upon this subject ought to have been given. The requests, however, were too broadly put. The error consisted in selecting certain circumstances, and assuming that these alone, if proved, would be conclusive. But other circumstances might enter into the question. Looking to see whether a train was approaching might not be the only test, nor even the best one, under all circumstances. And knowledge that a train was approaching would not necessarily render an attempt to cross the track in front of it gross negligence. Certainly the circumstances mentioned would be strong evidence of gross negligence. All we say is, they were not conclusive. The deceased might have listened. His ears might have been better than his eyes. There might have been obstacles in the way. He might have been close upon the track before seeing the approaching train, and have become confused or excited by the immediate danger. The condition of the road might not have admitted of his turning round. There might be various circumstances which would have some bearing upon the question of his negligence, or the degree of it, even though he failed to look. Chaffee v. Boston & Lowell Railroad, 104 Mass. 108" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/chaffee-v-boston--lowell-railroad-6416013?utm_source=webapp" opinion_id="6416013">104 Mass. 108. Williams v. Grealy, 112 Mass. 79" court="Mass." date_filed="1873-03-15" href="https://app.midpage.ai/document/williams-v-grealy-6417230?utm_source=webapp" opinion_id="6417230">112 Mass. 79. Hanks v. Boston & Albany Railroad, 147 Mass. 495" court="Mass." date_filed="1888-10-19" href="https://app.midpage.ai/document/hanks-v-boston--albany-railroad-6422889?utm_source=webapp" opinion_id="6422889">147 Mass. 495. The instructions to the jury were carefully guarded, and were sufficient to protect the legal