216 Mass. 5 | Mass. | 1913
The defendant contends that a verdict should have been ordered in its favor.
It is settled that a grade crossing like the one at which the plaintiff’s intestate was killed is a highly dangerous place; and it was the duty of the intestate in driving over it to make a reasonable use of his senses to ascertain whether a train was about to pass, and a failure to do this would constitute negligence on his part such as to prevent a recovery by him or by his administrator for an injury or for his death, where, as here, the statutory signals were given from the approaching train. Rogers v. Boston & Maine Railroad, 187 Mass. 217, 219.
But there was evidence that the intestate’s view was so obstructed by cars and trains upon other tracks of the defendant that the train which struck him could not be seen until he was almost upon the crossing; that there was much noise about there, so that the coming train or its signals could not be heard; and that the defendant’s flagman whose duty it was to guard this crossing had his attention engaged elsewhere and gave no warning to the intestate until the latter was close upon the track and could not avoid being struck. Under these circumstances, the question of the intestate’s due care was for the jury.
He could rely to some extent upon the fact that as he approached the crossing he had no warning from the flagman to whom the defendant had entrusted the duty of giving reasonable warning to travellers. It could be found that his senses of sight and hearing gave and could give him no information of the impending danger. These circumstances could not excuse him from the duty of exercising diligence for his own protection; but they were matters to be considered by the jury. As it was put by Rugg, J., in Fitzhugh v. Boston & Maine Railroad, 195 Mass. 202, 204, it could be found that the intestate, “for a reasonable distance before reach
There was evidence that the accident was due to the negligence of the defendant’s servants. There has been no argument to the contrary.
It follows that the defendant’s first and second requests for instructions could not have been given. No other question has been argued in its behalf.
jExceptions overruled.