Wheelock v. Boston & Albany Railroad
105 Mass. 203
Mass.
1870
Check Treatment
Morton, J.*

In cases of this nature, the burden of proof is upon the plaintiff to show that he was in the exercise of due care at the time he was injured. In numerous recent cases it has been held that if the evidence discloses an act of carelessness on the part of tire plaintiff, contributing to his injury, or if there is no evidence to show that he used the precautions and vigilance, which, according to common experience, men of ordinary prudence exercise under like circumstances, and there appears no reasonable excuse for his failure to do so, it is the duty of the court to direct a verdict for the defendants. This is upon the ground *207that the undisputed facts, viewed in the light of the common knowledge and experience of men, of which the court must take notice, show that the plaintiff has failed to prove an essential element of his case, namely, that he was in the exercise of ordinary care. But when the question, whether the plaintiff was using ordinary care, depends upon a variety of circumstances and the inferences to be drawn from them as to the effect which they would have upon the motives and conduct of men of the usual prudence and intelligence, and it cannot be said, as a matter of common knowledge and experience, that the plaintiff was careless, then the law refers the question to the judgment and experience of the jury.

A person cannot be said to be in the exercise of due care who enters upon a railroad track without using reasonable vigilance to ascertain whether a train is approaching. But the degree of care which a prudent man would use depends upon the time and circumstances. Thus, where a person entered upon a railroad track at a highway crossing, without looking to see if a train was approaching, and without any reasonable excuse for not looking, and thereby received an injury, it was held that he was careless and could not recover. Butterfield v. Western Railroad Co. 10 Allen, 532. Allyn v. Boston & Albany Railroad Co. ante, 77. On the other hand, it has been held that when a man attempted to cross a railroad track at a station, for the purpose of taking the cars, without looking to see if a train was approaching, but did so upon the invitation and direction of the station agent, it was a question for the jury whether in so doing he was in the exercise of due care. Warren v. Fitchburg Railroad Co. 8 Allen, 227.

Ir the case at bar, there are some circumstances which distinguish it from the class of cases first above cited. There was no evidence that the plaintiff looked up the track for the purpose of seeing if a train was approaching; but he testified that he looked up the platform to see an acquaintance, and that his line of vision embraced the track for a considerable distance in the direction from which the train by which he was injured came. It also appeared that he was there for the purpose of taking the cars ; that *208the passenger train, which he was about to take, stood upon the opposite track, discharging and receiving passengers; and that passengers were passing across the track in both directions, between the cars and the station-house. These circumstances may amount to an implied invitation on the part of the defendants to the plaintiff to cross the track, and an implied assurance that it would safe to do so. They furnished some reason for not using the degree of care which one would naturally exercise where his safety' depended wholly on his own watchfulness. Chaffee v. Boston & Lowell Railroad Co. 104 Mass. 108.

Upon a careful consideration of all the evidence, we are of opinion that the question, whether the plaintiff was in the exercise of due care, was one within the province of the jury to decide, and should have been submitted to them under proper instructions. New trial ordered.

Upon a second trial, at April term 1871, the jury returned a verdict for the defendants.

Notes

Colt, J., did not sit in this case.