Fahy v. Director General of Railroads

Carroll, J. The plaintiff was injured by jumping from the rear seat of an automobile, in which he was riding as the guest of the owner and driver, Frank L. McKean, at a double track grade crossing in the town of Dunstable. There was evidence that about five hundred feet from the crossing the automobile was stopped and as it started McKean told the plaintiff and two companions who were with him that they were approaching the crossing and to “ listen for a bell or whistle.” The road was down grade to a point about fifteen feet from the crossing, then up grade to the crossing. From a distance of two hundred feet to within about eight feet of the nearest rail, or twenty-seven feet from the farthest rail, as stated by the witnesses, there were bushes which obscured the view of an approaching train. When the automobile going at the rate of fifteen miles an hour was within twenty-seven feet of the farthest track, upon which the train was approaching, both McKean and the plaintiff saw the train,—then about one hundred and twenty feet away. McKean started the automobile forward and the plaintiff jumped to the ground, striking his foot against the planking. The automobile safely passed the crossing. The plaintiff testified that he was looking and [514] listening for a bell or whistle and heard none, and neither saw nor heard anything indicating the approach of a train until he was within twenty-seven feet of the track. The jury found that the statutory signals were not given. 1. The defendant contends that the omission to give the statutory signals was not a contributing cause to the plaintiff’s injury. If the jury believed the testimony of the plaintiff that the view of the train was concealed by the bushes and while listening he heard no signal by bell or whistle, they could find that by reason of the defendant’s neglect he was placed in a position of great danger but a short distance from a rapidly moving train, and that this neglect contributed to his injury. Doyle v. Boston & Albany Railroad, 145 Mass. 386, 387. Kelsall v. New York, New Haven, & Hartford Railroad, 196 Mass. 554, 555. Engleman v. Boston & Maine Railroad, 210 Mass. 179, 181. Griffin v. Hustis, 234 Mass. 95. 2. There was evidence from which the jury could find that the plaintiff did not surrender all care for himself to the caution of the driver McKean. He testified that he was looking and listening and relied on himself to learn of the approach of the train; and if it could be said that McKean was reckless and lacking in due care in not bringing the automobile to a stop at once on seeing the train, instead of driving forward at an increased speed and barely escaping a collision, his lack of care is not to be imputed to' the plaintiff so as to charge him with McKean’s neglect. Even if( McKean had a reasonable opportunity when he first saw the train to stop the automobile before reaching the crossing, the plaintiff might still be found to have been careful if he trusted to himself for his safety. The jury were told if the plaintiff surrendered his care and safety to McKean and McKean was careless, the plaintiff could not recover. There was no error, therefore, in refusing the defendant’s requests based on the assumption that the plaintiff voluntarily surrendered all care of his person to McKean. The plaintiff could properly rely on McKean to drive the automobile while he himself used his own senses to ascertain the approach of the train. There was no error in the refusal to give the defendant’s request bearing on this part of the case. Griffin v. Hustis, supra. 3. The defendant asked that a verdict be directed in his favor [515] because the plaintiff was not in the exercise of due care. It was plainly a question for the jury whether the plaintiff’s conduct in remaining in the automobile until he saw the train was that of a prudent man. They might say that up to this time he did all that could be expected of a person of ordinary care and caution. If, as soon as the plaintiff saw the danger, without time for reflection, realizing that the train was within a few feet of him and that a collision was almost inevitable he jumped from the automobile, thinking it best for his safety, and if the jury found that such conduct was reasonable in view of all the circumstances, they could decide he was using proper care and it could not be ruled as matter ■ of law that he was careless. Griffin v. Hustis, supra. It was not denied that the plaintiff was a guest of McKean. He was not, therefore, engaged in a joint enterprise with the owner of the automobile, and was not bound by his neglect. Peabody v. Haverhill, Georgetown & Danvers Street Railway, 200 Mass. 277, 279. We find no error in the judge’s charge taken as a whole. Exceptions overruled.