Marden v. Boston & Albany Railroad

Barker, J. Although one count of the declaration is drawn under the provisions of the Pub. Sts. c. 112, § 213, no proof was offered that the bell was not rung or that the whistle was not sounded for the crossing, and the plaintiff did not ask to go to the jury on that ground. We discuss only the question whether the plaintiff’s intestate was guilty of contributory negligence, because, upon the other counts, proof was necessary that the injury was not occasioned by her fault. She was killed at a crossing of a railroad and a highway, under such circumstances that but for the fact that she was a child the case would be governed by that of Granger v. Boston & Albany Railroad, 146 Mass. 276. As was there held, the defendant had the right to the exclusive use of the crossing when its trains were passing; and if it had given a warning, which a traveller disregarded, if he attempted without sufficient excuse to cross, he did so at his own risk. The lowered gates were a sufficient warning, and as several tracks were enclosed by them, no one had a right to suppose that the gates were down merely because of the switching engine, then not in motion; and it was negligence for a traveller to enter upon the tracks between the lowered gates when so warned that the exclusive use of the crossing was required for railroad purposes. This rule ought to be applied to the plaintiff’s intestate, who was familiar with the place, usually crossing it four times a day, and who is not shown to have had any occasion for haste, or any special inducement or invitation at the time to disregard the warning, and attempt the crossing when the gates were down. The only proper inference from the evidence is that she understood and took the risk. Judgment on the verdict.