Cook v. Union Railway

Soule, J. In driving on the highway, the plaintiff was in the exercise of an undisputed right. The defendant, which occupied a part of the highway with its tracks, was bound so to construct [61] and maintain the tracks that they should not be an obstruction to public travel on the highway. In the absence of knowledge, or the means of knowledge, to the contrary, the plaintiff had a right to assume that the tracks were so constructed and maintained. There was evidence as to the manner and rate of speed at which he was driving, as to the slackening of speed when he approached the crossing of the Boston and Albany Railroad track and began to turn out from the track of the defendant, which might properly be submitted to the jury, on the question whether he was in the exercise of due care. This is not the case of one who has voluntarily and improperly put himself in a dangerous place, and who therefore cannot recover for injuries received through the negligence of the defendant. It belongs to another class of cases, where the plaintiff, having sustained injury while doing what he had a right to do, must, in order to recover of a negligent defendant, prove affirmatively that he was in the exercise of such care as was appropriate to the place and occasion. If, in such case, there is any evidence on which it is competent for a jury to find that he in fact used reasonable care, the case must be submitted to them, however indicative of carelessness the facts may seem to the court. The court will not decide the question on the preponderance of evidence. Mayo v. Boston & Maine Railroad, 104 Mass. 137. So, too, if there was any evidence from which a jury would be warranted in finding that negligence of the defendant, in the construction or maintenance of its track, caused the injury, the question should be submitted to them, although there might seem to be a preponderance of testimony to the contrary. There was evidence which tended to show that when the plaintiff attempted to turn out of the track of the defendant’s railroad, the .vheel of his wagon was caught under the end of the thick part of the defendant’s rail, which had been cut away so as to leave about five inches space between it and the rail of the Boston and Albany Railroad track, and had been so cut away as to be broken under, and sharper than a right angle. This construction was such that a wagon wheel moving toward it and diagonally across the street, was exposed to the danger of being caught under the projecting end of the rail, whereas, if the rail had been so cut off that the slope was forward and downward, there would [62] have been no sharp projection or hook in which a wheel could be caught. Whether, on the whole evidence, the accident was caused by the catching of the wheel in this projection; and if it was, whether the construction of the track of the defendant s road in the manner indicated, at the point where the accident occurred, in view of the amount of travel on the highway, and in view of the crossing of the Boston and Albany Railroad track, was or was not so reasonably safe and convenient as to be no obstruction to travel on the highway, and therefore to show that the defendant was or was not negligent, were questions proper' to be submitted to the jury. Whatever may be our views as to the proper answer to these questions, we cannot say that there was no evidence to warrant a finding for the plaintiff. Case to stand for trial.