Bailey v. New Haven & Northampton Co.

Chapman, C. J. The point in issue was whether the defendants had used due care. The duty of each party was, as stated in Shaw v. Boston Worcester Railroad Co. 8 Gray, 45, 66, to use such reasonable degree of foresight, skill, capacity and actual care and. diligence as to enable each to use the privilege of crossing “ with due regard to the safety of all others using like precautions, skill and care, and such as a person of ordinary sense, prudence and discretion would use in regard to his own affairs under like circumstances.” See also Bradley v. Boston Maine Railroad, 2 Cush. 539. The thing sought to be proved by these witnesses called experts was not properly a custom by which parties dealing together are bound, and which, when proved, tends to establish their rights as against each other. It was rather a practice of railroad companies as to using or omitting a certain precautionary measure at certain crossings. But the need of a flagman depends much upon [498] the situation and circumstances of each particular crossing, and these must he known in order to determine intelligently whether or not there ought to be a flagman there. The practice at each crossing would therefore raise a separate collateral issue ; and if it were settled, it would not aid us dn determining the issue before us. In this case, evidence was given in respect to the track, the motion of the train and other particulars, which was pertinent to the issue, and tends to .show how much the necessity of maintaining a flagman must depend upon the particular circumstances of each crossing, and also the circumstances of each occasion of crossing, and how valueless the evidence would be if it took no account of these particulars. It also tends to show that evidence which should undertake to go into these particulars would present cases so unlike, that they would not be pertinent to the issue in this case. We think the evidence was properly excluded. Exceptions overruled.