154 Mass. 524 | Mass. | 1891
The plaintiff, a foot traveller on the highway, was struck by a locomotive at a grade crossing. The accident happened on a clear summer day, about eleven o’clock in the forenoon. The railroad had, within a short time before the accident, been raised so as to be about three feet higher than the level of the sidewalk on which the plaintiff approached from the east. The work of grading was unfinished, and the crossing was in a broken and poor condition, with one plank on each side of the rails. The ground was rough, so that teams had to walk across. There were three railroad tracks at the crossing, and the locomotive was on the middle track, coming from north to south. The plaintiff’s line of travel was diagonally across the tracks. From the end of the sidewalk to the tracks the space was filled with soft gravel. The height of the car windows from the ground was seven feet, and from the level of the sidewalk, ten feet. A building and the branches of a butternut tree obstructed the view from the sidewalk. These were the only obstructions, looking northward, to a bridge, a distance of nine hundred and eighty-five feet from the place of the accident. After a person passed on to the line of the railroad from the sidewalk, there was no obstruction to his view except the branches of the tree, and after reaching the nearest track there was no obstruction. A person approaching the railroad in the plaintiff’s line of travel could see in a clear line of vision from a point forty-two feet from the nearer rail of the middle track three hundred and fifty-two feet northward; at thirty-two and one half feet, nine hundred and eighty-five feet; at twenty-eight and one half feet, thirteen hundred and fifty-eight feet; and at twenty-three and one half feet, fourteen hundred and sixty-eight feet. There was no gate nor flagman at the crossing. The plaintiff lived in the vicinity, was familiar with the locality, and accustomed to pass over the crossing. She was between sixty and seventy years of age, of ordinary intelligence, and possessed of good sight and hearing.
The declaration was in two counts, the first under the Pub. Sts. c. 112, § 213. At the close of the evidence the court ruled that the plaintiff could not recover on the second count, which was at common law, and the jury found a verdict for the plaintiff on the first count, and found specially that the defendant
In addition to the facts above stated, there was evidence tending to show that, if the plaintiff had looked at all before going on the track, she could have seen the approaching train a quarter of a mile away; that she was familiar with the passing of trains, and had often before run across ahead of the train; that she did not look up the track at all; and that shortly before she was struck by the locomotive, and before .she had entered upon the middle track, and while she was yet in a place -of safety, she had heard the sharp whistles, or “ toot, toot, toot” of the engine, and knew that the train was coming at speed, and, notwithstanding this, attempted to cross in front of it. There was also evidence tending to show that before she left the sidewalk the train was actually in full view, approaching the crossing; that when she heard the danger whistles, she looked up directly at the train, and hurried up to get across, and tried to walk faster, and started to run ahead of the train; that when the danger whistle sounded she was between the east and middle tracks ; that she fell down before she was struck, and fell on the west rail of the middle track; that if she had stood still when the danger whistle sounded she would have been safe; and that she stumbled and fell on her knees and elbows, between the two rails of the middle track, and was struck by the train as she was trying to rise. One of the plaintiff’s witnesses testified that he heard the danger whistles, turned his eyes to the crossing, and saw the old lady; that her hands were up in this manner (showing), and she made one step and down she went, and recovered herself to the extent of getting partially on her hands and knees.
The plaintiff herself testified that, before she went on the railroad track, she looked up and down and did not see any engine or train, and did not hear anything; that she started to go across the track; that the track was soft; that she heard a “ big boo ” coming, and did not know what it was, and did not know anything else that happened there. She said, upon
The defendant introduced in evidence the whole testimony given by the plaintiff at a former trial of the case, in which she testified, upon cross-examination, that when she got right on the track she heard the “toot, toot, toot,” just as it was right up to her; that it was the engine that made the noise, and that it scared her out of her senses; that when she heard the noise she was going back from the track, and started to run, and ran right on the track, and tumbled down on the track in front of the engine; that the noise that was in her head, and the train, and all that, took her senses right away; and that it was the first place in her life that she had not her senses.
It is plain, upon this evidence, that the plaintiff was not in the exercise of ordinary care. If she looked, as she testified that she did, and did not see the approaching train, she looked carelessly. If she looked and did see it, it was certainly not ordinary care to attempt to walk in front of it. If she did not look, her failure was, at least, a want of ordinary care. But a mere want of ordinary care would not defeat her recovery under the first count of her declaration, and the burden of proving
Exceptions overruled.