Worthen v. Grand Trunk Railway

125 Mass. 99, 1878 Mass. LEXIS 29

• Court: Massachusetts Supreme Judicial Court
• Decided: July 24, 1878
• Status: Published

Opinion

Morton, J.

The plaintiff was injured by a collision at the depot at Detroit Junction. He testified that the train in which he was riding was running at an unusual rate of speed, and that for five miles before it reached Detroit Junction it was “ racing with a train on the Michigan Southern road, which was parallel with the defendant’s road and was in sight all the way.” We are of opinion that the question proposed by the defendant to its conductor, whether the train was running at the usual speed at this point, should not have been excluded. It is true that the fact that the defendant was running at the usual rate of speed would not be a defence, unless it appeared that such rate was a safe and proper rate of speed; but the testimony excluded would contradict the plaintiff’s testimony, and would tend strongly to show that the train was not racing with the train on the parallel road. It thus bore upon a question which would undoubtedly be influential with the jury in deciding the issue of the defendant’s negligence.

We see no ground of objection to the other rulings at the trial. The question, whether the plaintiff was using due care, was a question for the jury, and was submitted to them with instructions which were sufficiently favorable to the defendant.

Exceptions sustained.