Jones v. Boston & Maine Railroad

The defendants concede that it can be found they were in fault, but contend that it cannot be found the intestate was free from fault. The test to decide that question is to inquire whether the ordinary man, with the intestate's knowledge of the situation and its dangers, would have driven upon the crossing in the way he did. It is important, therefore, to consider what the intestate knew. He knew that locomotives were equipped with headlights, and that, notwithstanding it was dark and foggy, he could see the light of an approaching locomotive as soon as it came around the curve just east of the whistling-post; that the whistle was usually sounded at that point, and the bell rung until the locomotive reached the crossing; that he could hear the bell and whistle, as well as the rumble of the train, as he drove toward the crossing. It can be found from the evidence of the intestate's custom that he was listening for a train as he approached the crossing and, hearing none, looked for it as he drove along. He knew that when he was quite near the crossing he had an unobstructed view of the track to the whistling-post; and as he heard neither bell nor whistle, notwithstanding he was listening for them, and saw no light up the track, he concluded he could cross in safety in front of the approaching train, drove along, and was killed. It cannot be said that all fair-minded men must agree that the ordinary man, with the intestate's knowledge of the situation and its dangers, would not have done as he did.

Exceptions overruled.

PEASLEE, J., did not sit: the others concurred.