LaFond v. Boston & Maine Railroad

Sheldon, J. The defendant admits that there was evidence which would have justified a finding that the bell was not rung and the whistle was not sounded upon the engine of the train which struck and killed the plaintiff’s intestate. St. 1906, c. 463, Part II. §§ 147, 245. The jury could have found that the failure to give these signals contributed to the happening of the accident, even though the intestate was somewhat deaf. Doyle v. Boston & Albany Railroad, 145 Mass. 386. Walsh v. Boston & Maine Railroad, 171 Mass. 52, 58. Brusseau v. New York, New Haven, & Hartford Railroad, 187 Mass. 84. Upon these findings the plaintiff would be entitled to recover, unless the defendant sustained the burden of showing that the intestate, in addition to a mere want of ordinary care, was guilty of gross or wilful negligence which contributed to his injury, there being no contention that he was acting in violation of the law. Manley v. Boston & Maine Railroad, 159 Mass. 493. Walsh v. Boston Maine Railroad, 171 Mass. 52. Phelps v. New England Railroad, 172 Mass. 98. McDonald v. New York Central & Hudson River Railroad, 186 Mass. 474. As has been pointed out by this court, it is not often, in the absence of binding admissions or agreements as to facts, that a court can rule as matter of law that a material fact has been affirmatively proved. Kelsall v. New York, New Haven, & Hartford Railroad, 196 Mass. 554. Kenny v. Boston & Maine Rail [457] road, 188 Mass. 127. Brusseau v. New York, New Haven, & Hartford Railroad, 187 Mass. 84. In the first of these cases this rule was declared, and it was shown that the decisions in Debbins v. Old Colony Railroad, 154 Mass. 402, and Emery v. Boston & Maine Railroad, 173 Mass. 136, cannot be regarded as at variance with it. See also Slattery v. New York, New Haven, & Hartford Railroad, 203 Mass. 453. In the case at bar, as in others of the cases cited, the jury no doubt could have found that the intestate was guilty of gross negligence; but we cannot say that this was made out as matter of law. It is true that the gates were down when he started to cross the tracks, but the line of his approach was inside that of the gates, and it was not shown that he was aware of their position. If he did know it, he might have supposed that the gates were closed merely on account of the arrival of the train which he had just left, and were kept closed until that train should have departed, as the gateman testified would be done when a train extended (as this one did) over a part of the plank walk. The jury could have found also that there was an established practice on the part of the defendant not to have an express train go past the station while a local train was discharging passengers, and that the intestate from his long familiarity with the locality knew of this practice. This evidence was excepted to by the defendant; but it was competent, not only as to the defendant’s negligence, but also upon the issue of his care. Floytrup v. Boston & Maine Railroad, 163 Mass. 152. The jury might have found the custom to have been a practical construction of the defendant’s rule which was in evidence, on which the intestate had a right to rely. Santore v. New York Central & Hudson River Railroad, 203 Mass. 437, 444. That differentiates the case at bar from Connolly v. New York & New England Railroad, 158 Mass. 8. The fact which also could be found that he had passed by the gateman, who was just outside the gate, before stepping upon the track without then receiving any warning or intimation of danger had, in connection with the other evidence, a bearing upon the issue of his gross negligence. It did not appear that he then saw the express train approaching, and the circumstances which we have mentioned might have influenced his conduct. Even if he had seen it, he might, per [458] haps not without negligence but still without a necessary inference of gross negligence, have formed a judgment that he could safely cross before it should have reached him. Indeed, it might have been found that but for the pausing and turning around more than once and the bewilderment and confusion caused by the well intended shouts of the bystanders and the gateman, he would have crossed in safety. It is not shown that he was guilty of gross negligence in starting to cross the track. Nor can we say that his conduct in pausing, turning around and then continuing his attempt to cross is conclusive against him. In the immediate exigency and the distraction caused by the shouts behind him and the dazzling light of the locomotive and the roar of the train, it cannot be said as matter of law that either an instinctive movement forward or a sudden determination to go on was conclusive evidence of gross negligence. Copley v. New Haven & Northampton Co. 136 Mass. 6. Sullivan v. New York, New Haven, Hartford Railroad, 154 Mass. 524, 528. Manley v. Boston & Maine Railroad, 159 Mass. 493. Walsh v. Boston & Maine Railroad, 171 Mass. 52. Phelps v. New England Railroad, 172 Mass. 98. McDonald v. New York Central & Hudson River Railroad, 186 Mass. 474. We need not consider whether the plaintiff made out any case under the other counts of her declaration. Under the terms of the report, judgment must be entered in her favor upon the third count for the sum of $2,000. So ordered.