Hubbard v. Boston & Albany Railroad , 159 Mass. 320 ( 1893 )

Morton, J.

The case was submitted to the jury by the presiding justice on two questions: first, Was the bell rung continuously or alternately with the sounding of the whistle, for eighty rods, from and until the engine passed the crossing ? and, secondly, Was the plaintiff’s intestate guilty of gross or wilful negligence ?

The burden was on the plaintiff to show that the bell was not rung continuously or alternately with the sounding of the whistle. If we assume in favor of the plaintiff, what the defendant op-' pears to concede, that, though the whistle may have been blown at the whistling post, it was not sounded continuously till the crossing was reached, that is not decisive in his favor. The statute requires the whistle to be blown or the bell to be rung continuously or alternately. The only testimony on which the plaintiff relies to show that the bell was not rung continuously is the testimony of two men working near the crossing, one of whom testified that he did not hear any bell, and then immediately added that he never noticed anything at all about the bell at the time, and the other of whom testified that he did not hear any bell rung at the time of the accident. Neither says it was not rung. If their situation and occupation had been such that naturally they would have observed whether the bell was or was not rung, then the fact that one or both of them said they did not hear it rung would be evidence tending to show that it was not rung. But the testimony does not disclose such a state of things. On the contrary, both witnesses had their attention engrossed by the building of the fence, and neither was interested for any reason in the approach of the train. To say that one did not hear when there was not only no reason why he should hear, but, from his occupation, reason why he should not hear, is very little if at all stronger than to say one does not remember to have heard. We think the plaintiff has failed to sustain the burden of proof that was upon her to show that the bell' was not rung continuously. Tully v. Fitchburg Railroad, 134 Mass. 499. Menard v. Boston & Maine Railroad, 150 Mass. 386, 387. Johanson v. Boston & Maine Railroad, 153 Mass. 57. Hillyer v. Dickinson, 154 Mass. 502.

Exceptions sustained.