Wheelwright v. Boston & Albany Railroad

Colburn, J. In Chaffee v. Boston & Lowell Railroad, 104 Mass. 108, which was in some respects a similar case to the one at bar, the court say: “ The plaintiff must show, by positive evidence, in cases of this description, that he was in the exercise of due care, and that his want of it did not contribute to the injury of which he complains. If, as a matter of common knowledge and experience, the court can see that, upon all the undisputed facts, the plaintiff was not in the exercise of ordinary care, ánd that the injury he received was in part attributable to his want of it, the jury may be properly told, as matter of law, that he cannot recover.” In the case at bar, the plaintiff had ample opportunity to cross from the north to the south platform, either by the highway, or on the strips of planking designed for crossings, opposite the station building. She was attempting to cross at a place not designed or adapted for crossing, at which the defendant had held out no invitation or inducement for her to cross. The most that can be contended, on the evidence, is, that the defendant had tolerated a practice, which the plaintiff and others had adopted, of crossing where she was attempting to cross, without taking any active measures to prevent it. This is far different from an inducement or invitation from the defendant to cross there. In Chaffee v. Boston & Lowell Railroad, ubi supra, the court say: “A person who attempts to cross a railroad track, under any circumstances, can hardly be said to be in the exercise of [230] due care, unless he takes reasonable precaution to assure himself, by actual observation, that there are no approaching cars upon it. But the degree of caution he must exercise will be affected by the situation and surrounding circumstances.” In that case, the plaintiff was injured by being struck by a hand-car, with no light upon it, running at the rate of ten or twelve miles an hour, as he stepped from the platform on to the track, in a dark night. In the case at bar, the accident happened in broad daylight, between ten and eleven o’clock in the forenoon; the track was straight for a quarter of a mile easterly from the place where the plaintiff stepped upon it; and there was nothing to obstruct her view of the track for that distance, from any point on the platform within five feet of its southern edge. The conclusion is irresistible, that the plaintiff’s attention was so far occupied, by the approach of the train she was to take, that she omitted to look along the track she was to cross, and stepped directly in front of the train which struck her. Her knowledge of the rules of the defendant, that trains should not pass each other at stations, or follow each other within five minutes, did not, under the facts in this case, excuse her from taking the simple and obvious precaution of looking to see what might be coming on the track she was stepping upon. The fact that the plaintiff held a ticket, or that the train she was about to take had arrived, did not authorize her to cross the track at an improper place, or take any less care to see that she could cross in safety. Being of opinion that the plaintiff was wanting in due care, which contributed to her injury, both in attempting to cross where she did and in not looking for an approaching train, we have no occasion to consider the question of the negligence of the defendant. Exceptions overruled.