Wells, J.
There was evidence tending to show a failure, on the part of those who had charge of the incoming train, to adopt the reasonable precautions required by a proper consideration for the safety of human life, as well as by the regulations of the road, in respect to the manner of approaching stations at a time when another train is receiving or discharging passengers. The testimony also tended to show a noncompliance with the St. of 1862, c. 81, in regard to the crossing of highways. The.question of negligence on the part of the defendants must therefore be submitted to a jury; unless the facts disclosed at the trial preclude any recovery, for the reason that her own fault contributed to bring the injury upon the female plaintiff.
It is well settled that, in order to recover for. an injury on the ground of negligence of another party, it must appear that the plaintiff was in the exercise of due care in respect to the occurrence from which the injury arose; or that the injury is ifr no part due to his own fault or want of care. The burden rests upon the plaintiff to make this appear. Although, in form, a proposition to be established affirmatively, it is not necessarily to be proved by affirmative testimony addressed directly to its support. The burden is held to be upon the plaintiff, for the reason that it is a subordinate proposition, necessarily involved in the more general one upon which the action is founded, to wit, that the injury to the plaintiff was caused by the negligent or wrongful conduct of the defendant. If this be shown by evidence which excludes fault on the part of the plaintiff, the proposition. of due care is established as effectually as by affirmative testimony. All the circumstances under which the injury was received being proved, if they show nothing in the conduct of the plaintiff, either of acts or neglect, to which the injury maj [141]*141be attributed in whole or in part, the inference of due care may be drawn from the absence of all appearance of fault.
In cases of accident like the present, the question of due care on the part of the plaintiff presents itself in two aspects; one being whether it was consistent with due care that she was in the place of danger; the other, whether, being in such a place, she used such reasonable precautions as were necessary for her safety or protection against the danger.
When one voluntarily puts himself in a place of exposure to injury, without some reason of necessity or propriety to justify him in so doing, and injury happens to him in consequence of his being in that place, he is not allowed to recover for such injury, although he may be able to show negligence in the conduct of the other party. The decisions in Todd v. Old Colony & Fall River Railroad Co. 7 Allen, 207, and Hickey v. Boston & Lowell Railroad Co. 14 Allen, 429, were made entirely upon this ground. The case of Lucas v. New Bedford & Taunton Railroad Co. 6 Gray, 64, stands mainly upon the same consideration. It was an element in the decision of the recent case of Forsyth v. Boston & Albany Railroad Co. 103 Mass. 510; and also in the case of Bancroft v. Boston & Worcester Railroad Co. 97 Mass. 275. In the case last named, the opinion of the court lays especial stress upon what is regarded as a fact in the case, that the plaintiff “ attempted to pass across the track unnecessarily,” instead of reaching the highway through a passage prepared for that purpose without going upon the track of the railroad.
Such cases stand upon a different footing from those in which the arrangements of the road for the accommodation of persons in taking or leaving the cars, or crossing the track, afford a .Reasonable justification to the party for being upon the track, and thus exposed to the dangers incident to such a position. Of the latter class are Warren v. Fitchburg Railroad Co. 8 Allen, 227, Caswell v. Boston & Worcester Railroad Co. 98 Mass. 194 and Gaynor v. Old Colony & Newport Railway Co. 100 Mass. 208. Although the burden of proof still remains upon the plaintiff, in these cases, to show the exercise of such a degree of [142]*142care as was appropriate to the place and occasion, yet the court will not attempt to decide the question of due care upon the preponderance of the evidence. The surrounding circumstances, and the whole conduct of the plaintiff in reference thereto, will ordinarily afford ground for such a variety of inferences as to make the verdict of a jury the only proper means to determine the essential fact. However indicative of carelessness the circumstances may seem to the court, if there be any evidence upon which it is competent for the jury to find that reasonable care was in fact exercised, it is proper to submit it to them. It is only when the whole evidence on which the plaintiff’s case rests shows conclusively that he was careless, or when there is no evidence tending to show the contrary, that it is deemed to be the duty of the court to withdraw the case from the jury, or to direct a verdict for the defendant. Gahagan v. Boston & Lowell Railroad Co. 1 Allen, 187. In Butterfield v. Western Railroad Co. 10 Allen, 532, the omission of the plaintiff to take any observation with his eyes to ascertain whether a train .was near, although he knew that he was coming upon the track, was an undisputed fact, for which there was no excuse, and no explanation to make it consistent with reasonable care on his part.
In the case now before us, there is some evidence, in the statements of Mrs. Mayo, tending to show the exercise of due care by her, and we perceive no distinct and unquestioned fact in her conduct, either of acts or omissions, which will enable us to hold her to be precluded from presenting all the circumstances to the consideration of the jury, in order that they may pass upon the question. According to her own testimony, she was crossing the track apparently within the highway, and at the proper place for passengers, alighting from the cars by which she had arrived, to cross to the station-house. We infer from the evidence that the crossing place was planned between the rails, so as to facilitate her movements; and there was no platform to retard them upon reaching the opposite, side. There was no curve nor high bank near, to conceal the approaching train; and if the rear of the departing train had gone no more than six, or even four, feet beyond her when she began to cros% [143]*143yet, before reaching the further track, her means of observation would, in the natural course of things, be so enlarged as to give opportunity for circumspection in the attempt to cross the narrow space of a single track. We do not perceive, therefore, in the mere fact that she started to cross the railroad track so soon after the train by which she came had left the station, such clear and inexcusable want of care as to justify the' court in withdrawing the case from the jury.
The conduct of Mrs. Mayo, as testified to by herself and others, must be weighed by a jury, to determine whether in fact she did use due care, both in attempting to cross at the time she did, and in the manner in which she endeavored to accomplish the crossing.
Free access — add to your briefcase to read the full text and ask questions with AI
Wells, J.
There was evidence tending to show a failure, on the part of those who had charge of the incoming train, to adopt the reasonable precautions required by a proper consideration for the safety of human life, as well as by the regulations of the road, in respect to the manner of approaching stations at a time when another train is receiving or discharging passengers. The testimony also tended to show a noncompliance with the St. of 1862, c. 81, in regard to the crossing of highways. The.question of negligence on the part of the defendants must therefore be submitted to a jury; unless the facts disclosed at the trial preclude any recovery, for the reason that her own fault contributed to bring the injury upon the female plaintiff.
It is well settled that, in order to recover for. an injury on the ground of negligence of another party, it must appear that the plaintiff was in the exercise of due care in respect to the occurrence from which the injury arose; or that the injury is ifr no part due to his own fault or want of care. The burden rests upon the plaintiff to make this appear. Although, in form, a proposition to be established affirmatively, it is not necessarily to be proved by affirmative testimony addressed directly to its support. The burden is held to be upon the plaintiff, for the reason that it is a subordinate proposition, necessarily involved in the more general one upon which the action is founded, to wit, that the injury to the plaintiff was caused by the negligent or wrongful conduct of the defendant. If this be shown by evidence which excludes fault on the part of the plaintiff, the proposition. of due care is established as effectually as by affirmative testimony. All the circumstances under which the injury was received being proved, if they show nothing in the conduct of the plaintiff, either of acts or neglect, to which the injury maj [141]*141be attributed in whole or in part, the inference of due care may be drawn from the absence of all appearance of fault.
In cases of accident like the present, the question of due care on the part of the plaintiff presents itself in two aspects; one being whether it was consistent with due care that she was in the place of danger; the other, whether, being in such a place, she used such reasonable precautions as were necessary for her safety or protection against the danger.
When one voluntarily puts himself in a place of exposure to injury, without some reason of necessity or propriety to justify him in so doing, and injury happens to him in consequence of his being in that place, he is not allowed to recover for such injury, although he may be able to show negligence in the conduct of the other party. The decisions in Todd v. Old Colony & Fall River Railroad Co. 7 Allen, 207, and Hickey v. Boston & Lowell Railroad Co. 14 Allen, 429, were made entirely upon this ground. The case of Lucas v. New Bedford & Taunton Railroad Co. 6 Gray, 64, stands mainly upon the same consideration. It was an element in the decision of the recent case of Forsyth v. Boston & Albany Railroad Co. 103 Mass. 510; and also in the case of Bancroft v. Boston & Worcester Railroad Co. 97 Mass. 275. In the case last named, the opinion of the court lays especial stress upon what is regarded as a fact in the case, that the plaintiff “ attempted to pass across the track unnecessarily,” instead of reaching the highway through a passage prepared for that purpose without going upon the track of the railroad.
Such cases stand upon a different footing from those in which the arrangements of the road for the accommodation of persons in taking or leaving the cars, or crossing the track, afford a .Reasonable justification to the party for being upon the track, and thus exposed to the dangers incident to such a position. Of the latter class are Warren v. Fitchburg Railroad Co. 8 Allen, 227, Caswell v. Boston & Worcester Railroad Co. 98 Mass. 194 and Gaynor v. Old Colony & Newport Railway Co. 100 Mass. 208. Although the burden of proof still remains upon the plaintiff, in these cases, to show the exercise of such a degree of [142]*142care as was appropriate to the place and occasion, yet the court will not attempt to decide the question of due care upon the preponderance of the evidence. The surrounding circumstances, and the whole conduct of the plaintiff in reference thereto, will ordinarily afford ground for such a variety of inferences as to make the verdict of a jury the only proper means to determine the essential fact. However indicative of carelessness the circumstances may seem to the court, if there be any evidence upon which it is competent for the jury to find that reasonable care was in fact exercised, it is proper to submit it to them. It is only when the whole evidence on which the plaintiff’s case rests shows conclusively that he was careless, or when there is no evidence tending to show the contrary, that it is deemed to be the duty of the court to withdraw the case from the jury, or to direct a verdict for the defendant. Gahagan v. Boston & Lowell Railroad Co. 1 Allen, 187. In Butterfield v. Western Railroad Co. 10 Allen, 532, the omission of the plaintiff to take any observation with his eyes to ascertain whether a train .was near, although he knew that he was coming upon the track, was an undisputed fact, for which there was no excuse, and no explanation to make it consistent with reasonable care on his part.
In the case now before us, there is some evidence, in the statements of Mrs. Mayo, tending to show the exercise of due care by her, and we perceive no distinct and unquestioned fact in her conduct, either of acts or omissions, which will enable us to hold her to be precluded from presenting all the circumstances to the consideration of the jury, in order that they may pass upon the question. According to her own testimony, she was crossing the track apparently within the highway, and at the proper place for passengers, alighting from the cars by which she had arrived, to cross to the station-house. We infer from the evidence that the crossing place was planned between the rails, so as to facilitate her movements; and there was no platform to retard them upon reaching the opposite, side. There was no curve nor high bank near, to conceal the approaching train; and if the rear of the departing train had gone no more than six, or even four, feet beyond her when she began to cros% [143]*143yet, before reaching the further track, her means of observation would, in the natural course of things, be so enlarged as to give opportunity for circumspection in the attempt to cross the narrow space of a single track. We do not perceive, therefore, in the mere fact that she started to cross the railroad track so soon after the train by which she came had left the station, such clear and inexcusable want of care as to justify the' court in withdrawing the case from the jury.
The conduct of Mrs. Mayo, as testified to by herself and others, must be weighed by a jury, to determine whether in fact she did use due care, both in attempting to cross at the time she did, and in the manner in which she endeavored to accomplish the crossing. If she went upon the track, where another train was to be expected at any time, when she was unable to see whether it was approaching or not, or without looking to see if the way was clear of danger, she did not use that reasonable precaution which every one is bound to exercise for his own protection in such places. We are unable to see how the accident could have happened without some want of proper care on her part. The inference from the result is very strong. But its force is applicable only in disproof of whatever testimony there may be tending to show the exercise of care. It presents only a question of preponderance; and however decided that preponderance, it does not transfer the determination of the issue from the jury to the court.
If Mrs. Mayo was passing towards the station obliquely down the track, as one witness testified; or if she persisted in crossing in spite of warnings from the station-master, as testified by him and another witness, such fact would tend to show fault on her part sufficient to prevent her from recovering. But these are not conceded to be facts ; and the truth as well as the effect of such evidence must be passed upon by the jury. The cases will accordingly Stand for trial.