328 Mass. 180 | Mass. | 1951
These actions of tort arise out of a collision about midnight on March 26, 1942, between a gasoline
At the crossing there are three sets of tracks running northerly and southerly. Plainfield Street, upon which the automobile was travelling westerly, runs easterly and westerly. The train had left the Springfield station and was going northerly to Northampton upon the most easterly set of tracks. The crossing itself had a macadam surface and measured fifty feet from north to south and twenty-eight feet from east to west between the two outside rails. There was a flasher signal on each side of the crossing. Each signal had four lights which, in normal operation, came on and operated simultaneously, two lights flashing forward and two, known as “back-flashers,” being visible from the rear on the opposite side of the tracks. The lights ordinarily were fed by alternating current by energized track instruments, but in the event of power interruption were to be fed by direct current. A northbound train would start the flasher lights operating when it entered the circuit at a point 2,120 feet south of the Plainfield Street crossing. The flasher light on the easterly side of the crossing was thirteen and one half feet east of the easterly rail. By actual measurement from a point thirteen feet east of the easterly rail of the northbound track in the middle of Plainfield Street, the
The plaintiff testified that she was riding on the front seat with Johnson; that no one else was in the automobile; that they had driven along Center Street
Johnson testified that his speed was ten to fifteen miles an hour at seventy-five to one hundred feet from the crossing; that he was familiar with the crossing and the flasher lights; that "there were no lights that he relied on too much”; that he stopped the automobile three to four feet from the
According to evidence introduced on behalf of the plaintiffs it was a clear night; there was no traffic or parked automobiles on Plainfield Street; and the train made considerable noise. It could have been found, and seems to have been undisputed, that the train consisted of one unit, a passenger coach with a gasoline motor on the rear and the engineer in a small cab at the front. There also was evidence, which the jury did not have to accept, to the effect that the statutory signals were given; that the flasher fights were working; and that the automobile without stopping was driven onto the tracks and was struck immediately. There was testimony, introduced by both the plaintiffs and the defendant, that the speed of the coach was thirty-five to forty miles an hour. The engineer testified that at this speed he could stop in approximately six hundred feet; that he observed the white fight through the peep hole in the side of the flasher fights, the signal to the engine crew that the flasher fights were working; that the headlight was on full; that when the coach was about seventy-five feet from the crossing the automobile came onto the tracks and
The defendant’s motions for directed verdicts were denied, and the defendant excepted. In view of proper instructions given the jury, their verdicts establish that the plaintiffs cannot recover for any failure to give the statutory signals. They were correctly instructed that the defendant should prevail on all the statutory counts of all the plaintiffs if the statutory signals were given or if there was a violation of G. L. (Ter. Ed.) c. 90, § 15, as amended by St. 1933, c. 26, § 1. Kenney v. Boston & Maine Railroad, 301 Mass. 271, 277. Anderson v. Boston & Maine Railroad, 302 Mass. 101. The jury were also properly instructed that if the only negligence was a failure to give the statutory signals, and § 15 was violated, there likewise could not be recovery by the plaintiffs on their common law counts. Mannino v. Boston & Maine Railroad, 300 Mass. 71, 74-75.
Since there were verdicts for the plaintiffs in the cases at bar on the common law counts, the question is whether there was other evidence of the defendant’s negligence. The judge instructed the jury that the speed of the train was not such evidence. This was right, and no contrary contention has been made. The judge, however, left it to the jury to find whether there was a negligent failure of the flasher lights which was a cause of the accident. We are of opinion that this could not rightly have been done. On the testimony of the plaintiff and of Johnson, both of whom were entirely familiar with the crossing, he stopped his automobile a few feet from the nearest rail. At this point they were about ten feet beyond the flasher light on the easterly side of the tracks. It was then that the plaintiff looked for the only time and saw nothing. Johnson, who testified that there were no lights upon which he relied too much, looked to his left, and with a vision of six hundred feet saw nothing. On the testimony of both the. plaintiff and Johnson, he then
The plaintiffs contend that the defendant’s engineer was negligent in failing to observe the automobile during the not more than thirty seconds while it was stalled with its front wheels between the tracks and in failing to stop the train in season to avoid a collision. While the night was clear, there is no evidence of the extent of visibility from the engineer’s cab. When Johnson stopped short of the crossing, neither he, who could see six hundred feet, nor the plaintiff saw the engine or its headlight. The plaintiff never saw the train at any time. Johnson finally heard its rattle and then saw it at a distance of three or four hundred feet. In our opinion, it has not been established that the engineer, who, on the evidence, could stop in approximately six hundred feet, when at that distance or more from the crossing, should have observed the automobile (as to any lights on which there was no evidence), much less that he should have observed that the automobile was actually on the tracks, or if it was, that it was unable to move. Sypher v. Director General of Railroads, 243 Mass. 568, 571. MacLaren v. New York, New Haven & Hartford Railroad, 252 Mass. 233, 235.
We do not find it necessary to discuss the question of contributory negligence.
Exceptions sustained.
Judgments for the defendant.
The bill of exceptions states that according to a plan in evidence it is 227 feet from the middle of Center Street to the easternmost rail.