Moore v. Boston & Albany Railroad

Barker, J. It is unnecessary to consider the other questions raised, because we are of opinion that there was no evidence to justify a finding that the plaintiff’s intestate was herself in the exercise of due care. The crossing was not one to which the provisions of the Pub. Sts. c. 112, § 213, apply, and it is conceded by the plaintiff that the burden of proving that her intestate was in the exercise of due care rested upon the plaintiff. Assuming in her favor, without so deciding, that the jury might properly have found that the plaintiff’s intestate was upon the crosswalk when struck by the engine, there is no evidence as to her acts or thoughts from the time when she left the house where she was employed until the instant before she was struck. She was then seen by the engineer erect and facing the locomotive, and between the rails of the track on which it was approaching her, which was the first of the tracks over which her course to the station led. Her errand to the station required her, as she knew, to enter upon the railroad through the opening in the fence, and to cross several tracks upon which trains might pass at any time. But she could select her own time to cross, and due care required of her that she should use her faculties of perception and reasonable thought and judgment in selecting an opportunity to cross in safety. There is no direct evidence that she did any of these things, nor can it fairly be inferred. The inference that she walked carelessly into danger which reasonable care would have enabled her to avoid is at least as natural and proper from all [404] the known circumstances as that she was careful. To say thát she was careful would, at the best, be a conjecture, and conjecture is not to be allowed to supply the place of proof. Mayo v. Boston & Maine Railroad, 104 Mass. 137, 143. Hinckley v. Cape Cod Railroad, 120 Mass. 257, 262. Judgment on the verdict.