Walsh v. Boston, 171 Mass. 52 (Mass. 1898)

Morton, J.

Under the first count the plaintiff was bound to show that his intestate was in the exercise of due care, and that the accident happened through the negligence of the corporation or the unfitness or gross carelessness of its servants. We do not understand the plaintiff to contend that there was any evidence tending to show that the corporation was negligent. If, as the evidence tended to show, the gateman gave no signal or warning of the approaching train, we think that the jury would have been justified in finding that he was guilty of gross negligence. Tilton v. Boston & Albany Railroad, 169 Mass. 253. But we think that the plaintiff did not sustain the burden of showing that his intestate was in the exercise of due care. If the testimony of the gateman is to be believed, it would.tend strongly to show that the plaintiff’s intestate was guilty of gross negligence. It is possible, however, that the jury might not believe the gateman. If that is laid one side, then there is nothing to show that the plaintiff’s intestate as he approached the crossing looked or listened, or took any precautions to ascertain whether a train was coming. It is true that he may have been misled somewhat by the absence of the statutory signals, if those were not given, and by the open gates and the want of a light, and that, if he had looked his view of the approaching train might have been obscured by trees, fences, and buildings. But whether he was misled, or whether he looked or listened, or tried to look or listen, is all a matter of conjecture. Negligence on the part of the servants of the corporation will not excuse negligence on his part. Butterfield v. Western Railroad, 10 Allen, 532. Tyler v. Old Colony Railroad, 157 Mass. 336. And the circumstances do not appear to have been such as to excuse him from exercising

the care which every traveller is bound to exercise as he approaches a railroad crossing. Chase v. Maine Central Railroad, 167 Mass. 383. Merrigan v. Boston Albany Railroad, 154 Mass. 189. Fletcher v. Fitchburg Railroad, 149 Mass. 127.

Under the second count, the plaintiff was not obliged to show that his intestate was in the exercise of due care. He was entitled to recover if it appeared that the corporation neglected to give the signals required by law, and that such neglect contributed to the injury. The corporation could relieve itself from liability by showing that the plaintiff’s intestate was guilty of gross or wilful negligence, and that such negligence contributed to the injury. Pub. Sts. c. 112, § 213. The burden of proof was on the corporation to show this. Copley v. New Haven & Northampton Co. 136 Mass. 6, 10. The defendant admits that the whistle was not blown, the engineer having had orders not to blow it. We think that there was evidence for the jury on the question whether the bell was rung, the statute being that the whistle must be blown or the bell rung. • The circumstances attending the observation of the two witnesses whose testimony principally was relied on to show that the bell was not rung relieve it from the objection which has been found in some other cases to exist to the introduction of similar testimony. The evidence tended to show that they passed over the crossing where the accident occurred, and after having gone a short distance, their attention being attracted by the approaching train, they stopped and turned round and watched it as it approached the crossing. If their testimony is believed, their attention was directed solely to the approaching train. It was not distracted by anything else. Under such circumstances, it cannot justly be said, we think, that, where a witness testifies that he did not hear the bell rung, it is not some evidence that it was not rung. The probability that, if the bell had been rung, it would have impressed itself in some manner on his consciousness, cannot be regarded as so remote, we think, as to render his testimony inadmissible because he is unable to say positively that it was not rung. Menard v. Boston Maine Railroad, 150 Mass. 386. Johanson v. Boston & Maine Railroad, 153 Mass. 57. Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532. Lamoureux v. New York, New Haven, & Hartford Railroad, 169 Mass. 338.

The defendant contends that it does not appear that the failure to ring the bell contributed to the accident, and that the plaintiff’s intestate was grossly careless. But it is to be presumed that persons approaching a place of danger, like a railroad crossing, ordinarily will pay some attention to signals given for the purpose of warning them of approaching trains. The requirement that signals shall be given is based on this assumption. It is not an unreasonable inference, therefore, that, if there is an accident at a railroad crossing, and the bell was not rung nor the whistle blown, that fact, in the absence of evidence to the contrary, had something to do with it. Doyle v. Boston & Albany Railroad, 145 Mass. 386.

Passing over the testimony of the gateman, which, as already observed, the jury might not believe, we think that it cannot be held, as matter of law, that the plaintiff’s intestate was grossly careless. The accident happened about half past nine in the evening. When last seen by any one but the gate-man, the plaintiff’s intestate was driving slowly towards the crossing, seated in an open two-seated carriage. The horse was a safe one, which he had driven for two years before the accident. The gates were up, and there was evidence from which the jury might have found that the gateman gave no warning of the approaching train. His view in the direction from which the train was coming was obstructed. Though he was familiar with the crossing, it does not appear that he knew that this train, which had been running only eleven days, had been put on. Taking the situation as the jury might have found it to be, we cannot say that it appears, as matter of law, that he was grossly negligent. Lamoureux v. New York, New Haven, & Hartford Railroad, 169 Mass. 338, 340. The difficulty under this count is that the defendant has the burden of proof on the question of gross negligence, as the plaintiff has it on the question of due care under the first count. The sections of the statute under which the declaration is drawn make a distinction between the two.

On account of the error in the ruling so far as the second count is concerned, the entry must be exceptions sustained, but the new trial will be limited to the second count.

So ordered.