Stretton v. New York, New Haven, & Hartford Railroad

84 N.E. 799, 198 Mass. 573, 1908 Mass. LEXIS 987

• Court: Massachusetts Supreme Judicial Court
• Decided: May 20, 1908
• Status: Published

Opinion

Loring, J.

These are two actions brought by the occupants of an automobile to recover for injuries caused by a collision with a train of the defendant railroad on a highway crossing. There were two counts in each declaration. The negligence of the defendant counted on in each was failure to ring the bell or blow the whistle.

In the two second counts there was an allegation of due care on the part of the plaintiffs, but there was no such allegation in the first count. The defendant pleaded gross negligence by the several plaintiffs. The presiding judge directed a verdict for the defendant on each of the second counts, and left the first counts to the jury. The jury found for the defendant on the first count in each action, and on special issues left to them found that the statutory signals were given and that the plaintiffs were guilty of gross or wilful negligence.

These findings make the ruling of the presiding judge on the second counts immaterial, and the plaintiffs were not harmed by the ruling, even if it were wrong, which we do not intimate. To render verdicts for the defendant on the first counts, the jury must have found, and they in fact did find, both that the defendant was not negligent and that the plaintiffs were guilty of gross negligence. Under those circumstances there was no liability under the second counts.

Exceptions overruled.