Railroad, Liability for injury or death at grade crossing. Negligence, Gross. Evidence, Presumptions and burden of proof, Relevancy and materiality.
In an action by an administrator against a railroad corporation under St. 1906, c. 463, Part II. § 245, for the loss of life of the plaintiff's intestate at a grade crossing of a highway, caused by the neglect of the defendant to give the signals required by § 147 of the same chapter, if it appears that the signals were not given and that the failure to give them contributed to the happening of the accident, the plaintiff is entitled to recover, unless the defendant sustains the burden of showing that the intestate, in addition to a mere want of ordinary care, was guilty of gross or wilful negligence or a violation of law which contributed to the injury.
It is seldom that a presiding judge can rule as matter of law that a material fact has been proved affirmatively, and, in an action by an administrator against a railroad corporation under St. 1906, c. 463, Part II. § 245, for the loss of life of the plaintiff's intestate at a grade crossing of a highway, caused by the neglect of the defendant to give the signals required by § 147 of the same chapter, facts on which the jury could find that the intestate was guilty of gross negligence do not for that reason justify the presiding judge in ruling that the defendant as matter of law has proved gross negligence of the intestate.
In an action by an administrator against a railroad corporation under St. 1906, c. 463, Part II. § 245, for the loss of life of the plaintiff's intestate at a grade crossing of a highway, caused by neglect of the defendant to give the signals required by § 147 of the same chapter, there was evidence that the signals were not given and that the failure to give them contributed to the happening of the accident. It appeared that the intestate, who was a little deaf, had alighted from a local train of the defendant at a station of the defendant, near which he lived, and that, passing behind the train from which he had alighted, he proceeded to cross the parallel tracks at the crossing on his way home, walking in the line of the sidewalk which was intercepted by the crossing, when he was struck and killed by an inbound express train on the third track. The gates were down, but the intestate was inside of them and it was not shown that he was aware of their position. There was evidence that, if he did know it, he had reason to suppose that the gates were kept closed merely because the rear of the train from which he had alighted extended over a part of the plank walk in the line of the sidewalk. There also was evidence on which the jury could have found, that there was an established practice 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 familiarity with the locality knew of this practice. It also could have been found that before stepping on the track the intestate had passed a gateman, who was just outside the gates, and had received no warning or intimation of danger. It did not appear that the intestate then saw the express train approaching. It appeared that when the intestate was about to step on the track of the express train his attention was attracted by shouts from the gateman and the bystanders, that he then turned around and started back, but became confused, turned again and walked toward the express train and was struck and killed. It might have been found that, but for his pausing and turning around and his bewilderment and confusion caused by the shouts, the intestate would have crossed in safety. Held, that it could not be ruled as matter of law that the defendant had shown that the plaintiff's intestate was guilty of gross negligence, and that the case was for the jury.
In an action against a railroad corporation under St. 1906, c. 463, Part II. § 245, for the loss of life of the plaintiff's intestate at a grade crossing of a highway, caused by neglect of the defendant to give the signals required by § 147 of the same chapter, if it appears that the intestate had alighted from a local train of the defendant at a station of the defendant, near which he lived, and that he proceeded to cross the parallel tracks at the station on his way home, when he was struck and killed by an inbound express train on the third track, and the defendant contends that the plaintiff cannot recover because it is shown that his intestate was guilty of gross negligence, evidence, that there was an established practice of the defendant, of which the intestate from his long familiarity with the locality might have been found to have had knowledge, that no express train should go past the station while a local train was discharging passengers there, is admissible as tending to show the absence of gross negligence on the part of the intestate.
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 Railroad, 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, perhaps 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.