Elkins v. Boston & Albany Railroad

Gray, C. J. The evidence introduced by the plaintiff at the trial tended to show that the wagon was being driven slowly along the highway, that the plaintiff and the boy who was driving did not know that they had arrived at the railroad crossing, nor see or hear the engine or cars, that there was no sign-board at the crossing, that the train was going at the rate of thirty miles an hour, and that the whistle of the engine was not sounded nor the bell rung before reaching the crossing; and did not show that the approaching train was in sight from the road. This evidence, if not controlled by evidence on the part of the defendants, would justify the inference that there was ordinary care on the part of the plaintiff. The facts that the plaintiff, a boy ten years old, on a cold afternoon in winter, had the lappets of his cap tied over his ears, that he had previous knowledge that the railroad crossed the road at this place, and did not tell his companion of it, and that he did not look or listen for the train, were elements to be considered by the jury. But, taken in connection with the facts (if believed by the jury) that the plaintiff and his companion did not know that they .were at the crossing, and that the defendants did nothing to warn them of it, or of the approach of the train, until it was too late, they were not conclusive against the plaintiff upon the issue of ordinary care on his part at the time of the accident. Mayo v. Boston & Maine Railroad, 104 Mass. 137. Commonwealth v. Fitchburg Railroad, 10 Allen, 189. Reed v. Deerfield, 8 Allen, 522. [200] The want of a sign-hoard at the crossing was rightly admitted in evidence as bearing upon the question whether the plaintiff and his companion knew or should have known that they were approaching the crossing, and therefore upon the issue whether they used ordinary care to guard against the accident. The age of the plaintiff was also competent evidence upon the question whether he had used such care as was reasonably to be expected of him. Lynch v. Smith, 104 Mass. 52. Lane v. Atlantic Works, 107 Mass. 104, and 111 Mass. 136. Railroad Co. v. Gladmon, 15 Wallace, 401. The evidence offered by the defendants, tending to show intimacy between the physician called as a witness for the plaintiff and the plaintiff’s mother on one occasion three years before the accident, might properly be rejected by the presiding judge as remote and immaterial. The instructions given to the jury met and covered the instructions requested, and were sufficiently favorable to the defendants. All the exceptions taken by the defendants at the trial must therefore be overruled, and it only remains to consider the motion for a new trial. The presiding judge has found as matter of fact that the whole evidence in the case did not warrant the jury in finding that the defendants were in fault m respect of the bell, sounding the whistle, or managing the train, and that the verdict cannot therefore be sustained on either of those grounds. Those grounds are the only ones which have been tried, or which the defendants have had any opportunity to contest; for the failure of the defendants to maintain a sign-board at the crossing was not alleged in the declaration, and was distinctly excluded from the consideration of the jury, except so far as it bore upon the issue of due care on the part of the plaintiff; and the jury were expressly instructed that the only ground on which the defendants could be held liable was for failure to ring the bell or sound the whistle for the eighty rods before reaching the crossing. If negligence in not maintaining a sign-board at this crossing had been alleged as a ground of action, and it had been found by a jury that the defendants should have erected such a sign-board [201] and that their neglect to do so occasioned the injury to the plaintiff, they might have been held hable. Linfield, v. Old Colony Railroad, 10 Cush. 562. But a verdict which, upon the issue submitted to the jury, is against the weight of the evidence introduced at the trial cannot be sustained by the opinion of the court upon a distinct ground of liability, which has not been alleged or tried, and which can only be put in issue by an amendment of the declaration and by evidence which the jury have never been permitted to consider, nor the defendants to be heard upon before them. Rex v. Malden, 4 Bur. 2135. Wheelock v. Wheelwright, 5 Mass. 104. Tyler v. Ulmer, 12 Mass. 163. Shaw v. Boston & Worcester Railroad, 8 Gray, 45, 76, 77. Cairns v. Cairns, 109 Mass. 408. Verdict set aside, and new trial ordered.