Railroad. Negligence. R.L.c. 111, § 188, requiring a railroad corporation to cause a bell to be rung or a steam whistle to be sounded continuously for eighty rods on a locomotive engine approaching a grade crossing of a highway, does not apply to an engine with a freight car attached to it backing down from a freight house to be recoupled to a freight train which has stopped after substantially passing the crossing, leaving the end of the last car still extending four feet over it, there being no intention nor attempt to run the train again over the crossing.
If an old man approaches a railroad crossing on a highway, after a freight train has passed over it and has stopped leaving the end of the rear car extending three or four feet into the street at the crossing, and sees the flagman with his flag standing in the street guarding the crossing, and if, with his back turned toward the flagman, he stands on the planking between the rails of the track and engages in conversation with the conductor of the freight train, who is on the platform of the rear car, and, while he is standing in this way within a foot or two of the end of the train, the engine with a car attached to it backs down to be recoupled to the train, and in doing so forces back the train so that the end of the rear car knocks down the old man and injures him, causing his death after conscious suffering, his administrator cannot recover either for his conscious suffering or for his death, as he was not in the exercise of due care.
BRALEY, J.
This is an action of tort to recover either at common law or under R.L.c. 111, § 188, now St. 1906, c. 463, Part II. § 146, for the conscious suffering of the plaintiff's intestate, and under R.L.c. 111, § 267, now St. 1906, c. 463, Part I. § 63, for his death by reason of the alleged gross negligence of the defendant's servants.
The accident happened at a grade crossing, and the first question is, whether the defendant's failure to sound the whistle or ring the bell on the locomotive was a violation of R.L.c. 111, § 188. It is the purpose of this section, that the signal required should be given continuously for a distance of eighty rods above the crossing, to warn approaching travellers upon the highway of the danger of attempting to cross until the train has passed. But at the time of the accident the freight train had passed with the exception of a part of the buggy, and stopped, while some of the cars had been switched, and, when the engine with one car attached backed down from the freight house to be recoupled, there was no intention of again running the train over the crossing, nor in fact was this attempted. Under these circumstances the statute was inapplicable, and, there being no duty imposed, the failure to give the statutory warning affords no cause of action.
The plaintiff, being left to the counts at common law and for gross negligence, had the burden of proving that his intestate was in the exercise of due care. It is abundantly manifest that as he approached, if he had taken any observation at all of the surrounding conditions which were plainly visible, he must have seen the flagman with his flag standing in the street guarding the crossing, and the rear part of the freight train stopped with the buggy partially on the crossing. If, usually, to stand deliberately on a railroad track over which a train is likely at any moment to pass, is considered inexcusable carelessness, the act of the defendant in remaining on the planking between the rails within a foot or two of the buggy with his back to the flagman and entering into conversation for several minutes with the conductor, when, if he had taken any precaution, he must have known that, as the train came together, there might be danger of his being struck by its running back, must be deemed such contributory negligence as to preclude recovery. Butterfield v. Western Railroad, 10 Allen, 502. Barstow v. Old Colony Railroad, 143 Mass. 535, 537. See Granger v. Boston Albany Railroad, 146 Mass. 276; Young v. Old Colony Railroad, 156 Mass. 178; Hudson v. Lynn Boston Railroad, 178 Mass. 64; Raymond v. New York, New Haven, Hartford Railroad, 182 Mass. 337; Ellis v. Boston Maine Railroad, 169 Mass. 600; Hamblin v. New York, New Haven, Hartford Railroad, 195 Mass. 555, 557.
Exceptions overruled.