Copley v. New Haven & Northampton Co.

A majority of the court is of opinion that this case was properly submitted to the jury, and under proper instructions. There was contradictory evidence upon the question whether the bell was rung or the whistle sounded at a distance of eighty rods from the crossing, as required by the St. of 1874, c. 372, § 123. It may have been found as a fact that no signal was given until the engine was within from three to six rods of the crossing, or even less. There was evidence tending to show that the deceased was then within three or four feet of the track, and that two sharp danger-whistles were then given, and that she started to run across the track. She had a right to rely, to some extent, upon the signals of warning which the law required to be given. Gaynor v. Old Colony & Newport Railway, 100 Mass. 208. Chaffee v. Boston & Lowell Railroad, 104 Mass. 108. *10The want of such signals may have led to her being in that situation. This is a matter of inference. Finding herself there, in the evening, close upon the track, with no previous warning, with a train approaching at great speed, and already within from three to six rods of her, and perhaps even less, startled by the sudden and sharp whistles, seeing a flashing head-light, with no time to reflect, we cannot say, as matter of law, that the burden which is imposed by statute on the defendant of showing, in addition to the mere want of ordinary care, such gross or wilful negligence as is contemplated by the St. of 1881, c. 199, § 2, was maintained by proving that she attempted to cross the track under these circumstances. Under this statute, it was not sufficient for the defendant to show merely a want of ordinary care on her part. A clear distinction is implied by the terms of the statute, under which gross or wilful negligence means something .more. There was no error in allowing the jury to consider whether she was able at the time to appreciate and realize substantially the distances and the situation. The circumstances were such that we cannot say that the jury were not authorized to find, either that she was likely to be confused and bewildered, or to be misled as to the distance of the engine from her.

Exceptions overruled.