206 Mass. 557 | Mass. | 1910
One of the rules of the defendant corporation in force at the time of the accident here in question provided that: “ No train will pass a station on a double track while another is receiving or discharging passengers (except as may be especially
In leaving to the jury the question of negligence on the part of the corporation the presiding judge did not suggest what could have been done by the defendant corporation beyond what it did. The only thing suggested by the learned counsel for the plaintiff is that there was a violation of R L. c. Ill, § 200. But the posting of a brakeman between every two cars does not insure the presence of one at each end of each car.
Of the thirteen cases relied on by the plaintiff in support of her contention on this point, one only ( Commonwealth v. Coburn, 132 Mass. 555) is a case for a penalty for the death of a passenger or other person. There is nothing in that one (Commonwealth v. Coburn) which helps the plaintiff.
We are of opinion that the evidence did not warrant a finding of negligence on the part of the corporation. The jury were instructed that if they found negligence on the part of the corporation or gross negligence on the part of its servants, they should find for the plaintiff. The verdict was a general one, and may have been based on negligence by the corporation. It follows that there must be a new trial.
The defendant has contended that there was no evidence of gross negligence on the part of the defendant’s servants. Gross negligence under the statute
When the injury likely to ensue from failure to do that which ought to be done is a fatal or a very serious one, what otherwise would be a lack of ordinary care may be found to be gross negligence. Hartford v. New York, New Haven, & Hartford Railroad, 184 Mass. 365. Mullins v. New York, New Haven, & Hartford Railroad, 201 Mass. 38. See also Hale v. New York, New Haven, & Hartford Railroad, 190 Mass. 84.
That applies to the case at bar, where the negligence consisted in driving an express train past a station without any slacken
The difficulty with the argument made by the learned counsel for the defendant on this point is that he assumes that the jury were bound to give credit to the story told by the defendant’s engineer as to the care with which he looked for the local train, and to his testimony and that of the fireman that the local train was shut out from view by the smoke settling down. The jury were at liberty to entirely disregard that testimony. See Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314.
Exceptions sustained.
The word “ gross ” was stricken from the statute by St. 1907, c. 392.
