Merrigan v. Boston & Albany Railroad

Holmes, J. The first exception is to the admission of an order of the mayor and aldermen of Boston requesting the defendant to erect gates at the crossing where the accident occurred, coupled with evidence that gates were placed there about the time the order was communicated to the defendant. The second exception is to an instruction to the jury, that, if they found that the defendant acted or procured action upon the order, they might consider it as an admission by the defendant that the gates were reasonably necessary for the public security. The mere fact that the gates were there would not be such an admission. Menard v. Boston & Maine Railroad, 150 Mass. 386. But if gates were put up in consequence of a representation that public safety required them, the act takes a color from the representation which led to it, and, unless otherwise explained, imports more or less assent to the representation. The order of the mayor and aldermen was such a representation. If it had not been complied with, an application might have been made to the county commissioners, who might have enforced compliance. St. 1874, c. 372, § 126. Pub. Sts. c. 112, § 166. If the order was communicated to the defendant, and shortly afterwards the gates were put up, the jury were at liberty to infer that the gates were put up in consequence of the order, and thence [193] to deduce an admission by the defendant, whether the defendant put up the gates itself or procured them to be put up by the Boston and Maine Railroad. It is suggested that an admission applicable to the busy parts of the week would not apply to Sunday afternoon. But the distinction seems to us rather for the jury than for the court. The plaintiffs had a right to show the general character of the crossing. The judge instructed the jury that the existence of gates, seemingly intended to be shut when trains pass, did not excuse the plaintiff from looking before crossing, but that he had a right to take the fact into consideration on the question to what extent he would look. This instruction does not seem to us contradictory, and it does appear to us correct. We believe that it accurately expresses the actual effect of an open gate at a railroad crossing upon the minds of careful people, and it is in accordance with the decisions as to flagmen whose attitude conveys the impression that there is no present danger. Johanson v. Boston & Maine Railroad, 153 Mass. 57. One or two words in the charge, taken by themselves, might have conveyed the notion that the distance, as well as the extent to which the plaintiff was bound to look, was affected by the gates being open. But we do not understand that to be the meaning of the language, and attention was not called to the possible ambiguity by the exception. The only other exception not waived is to the refusal of the judge to give an instruction requested. But although not given in terms, it was given in substance, both in the course of the charge, and again, in answer to a further request of the defendant, at the end of it. In the opinion of a majority of the court, the exceptions must be overruled. Exceptions overruled.