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eBook details

• Title: Brown v. Boston & M. R. R.
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 04, 1939
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

QUA, Justice. This action is brought under G.L.(Ter.Ed.) c. 229, § 3, to recover for the death of the plaintiff's testator as the result of a locomotive of the defendant to which no train was attached striking an automobile which the deceased was driving over a grade crossing on Eames Road in Worcester. The declaration is based solely upon negligence of the defendant and is such as might have been filed in an action at common law if the plaintiff's testator had lived. This is not an action for failure to give the statutory signals. G.L.(Ter.Ed.) c. 160, §§ 138, 232. We think it unnecessary to discuss the evidence at length, as we have been unable to distinguish the case from a long series of decisions in which it has been held that recovery was barred because of the failure of the operator of a motor vehicle upon approaching a grade crossing to exercise due care and to 'proceed cautiously over the crossing' as required by G.L.(Ter.Ed.) c. 90, § 15, as amended. Photographs incorporated in the bill of exceptions show that the presence of the crossing was evident to one approaching it from the west as did the deceased; that the road crossed the railroad nearly at a right angle; that after passing the corner of a building on his right, which the evidence tended to show was about forty-eight feet from the center of Eames Road and from thirty-eight and a half to fifty feet from the nearer of the two tracks, he obtained a practically unobstructed view along the railroad to the south, from which direction the locomotive came; that as he ascended a slight grade toward the nearest rail and reached a point which witnesses estimated as twenty-five feet from it this view extended a great distance estimated by all witnesses who testified upon the subject, by whichever party called, at not less than two thousand feet. The collision occurred on the second track. The speed of the deceased's automobile was estimated at from five to seven miles an hour and that of the locomotive at from twenty to forty-five miles an hour. The only evidence as to the time of the collision tended to show that it took place at twenty minutes past eleven in the forenoon of November 3, 1933. There was no evidence of any unusual conditions.

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