Clark v. Boston & Maine Railroad , 164 Mass. 434 ( 1895 )

Morton, J.

The instruction requested by the defendant, that if the plaintiff, without stopping to look or listen, approached the crossing at a trot, with a heavy load, on a highway descending for more than a hundred feet from the tracks, he would be negligent even if the gates were up, was properly refused.

A railroad crossing is a place of danger, and a traveller approaching one is bound to exercise that degree of care which the dangerous character of the place requires of a person of ordinary prudence. But there is no absolute rule of law which obliges him under all circumstances to stop to look and listen. Generally he must look and listen, and in such a manner that the looking and listening will enable him to see or hear an approaching train with reasonable certainty if one is within the range of his sight or hearing. Fletcher v. Fitchburg Railroad, 149 Mass. 127. Tyler v. Old Colony Railroad, 157 Mass. 336. Connolly v. New York New England Railroad, 158 Mass. 8. But it cannot be said, as matter of law, that there may not be circumstances which will excuse him from looking and listening, and especially from stopping to look and listen. In the present case there was evidence tending to show an invitation on the part of the gateman to the plaintiff to cross. The fact that the plaintiff approached the crossing at a trot with a heavy load on a descending grade, if it was a fact that he did so, would not of itself render his conduct negligent, there being nothing to show that he could not have stopped if he had had reasonable notice of the coming train.

It was for the jury to say what the object of the flag was, and whether its presence had or should have had any effect upon the conduct of those in control of- the train, or of the gateman. It appearing that the rule in force at the time of the accident was the one put in by the defendant, it was competent for the court to permit the plaintiff to withdraw the one put in by him, and to direct the evidence in relation to it to be stricken out and to be disregarded by the jury. Costello v. Crowell, 133 Mass. 352. Smith v. Whitman, 6 Allen, 562. It is to be presumed that the jury followed the instructions of the court, and it does not appear that the defendant was harmed by the course which the trial took.

Exceptions overruled.