EDWIN POOLE vs. BOSTON AND MAINE RAILROAD.

MORTON, J. This is an action of tort to recover for personal injuries received by the plaintiff as the result of a collision between a buggy, in which the plaintiff was riding with one Baker, and

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a freight train of the defendant, at a grade crossing on Water Street in Orange. The accident occurred at about eleven o 'clock at night on May 17, 1911. Baker was killed. The case has been here before, and is reported in 212 Mass. 596. At the previous trial the presiding judge, at the close of the evidence, directed a verdict for the defendant, subject to the plaintiff's exceptions. The exceptions were sustained and the case was sent back for another trial, at which there was a verdict for the defendant. The case is here now on exceptions by the plaintiff to the admission and exclusion of evidence and to certain rulings that were given and refused, and to certain portions of the charge. [Note p14-1]

1. Assuming that the witness would have answered that when the team started to go across the main line there was nothing with lights on it coming down the track, it is plain that the evidence would have been admissible on the question of the plaintiff's due care and the defendant's negligence as part of the plaintiff's case in chief, and the presiding judge could therefore properly exclude it, when offered in rebuttal. Burnside v. Everett, 186 Mass. 4, 7. Eames v. Whittaker, 123 Mass. 342.

2. The admissibility of the rule that was offered in evidence [Note p14-2] was rightly limited to the last sentence of it. The exceptions recite that there was "no evidence that there were yard limits or railroad crossings at grade, or drawbridges, and the train was not required to stop at Orange, nor was there a heavy grade." And it did not appear that the crossing was a place where a train was liable to break apart. None of the conditions, therefore, which rendered any of the rest of the rule applicable existed. By" rail

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road crossings at grade" is meant, we think, not where a railroad crosses a highway at grade, but where two lines of railway cross at grade. It was within the discretion of the presiding judge as to the conduct of the trial to admit the last sentence of the rule in evidence when he did.

3. From marks and indications on the caboose, which was the last car, and on the two cars next ahead of it, the defendant contended that the horse was driven into the train. To meet this the plaintiff offered to show in rebuttal, by a brother of the man who was driving the horse, that he had driven the horse and had "known it for a number of years;" that he was "familiar with its driving qualities; that it was a high-lifed horse, a good driver, and from his experience with the horse it could not be driven into a moving train." The presiding judge thought that what was offered was opinion evidence and excluded it. The plaintiff himself had testified in chief as to the horse's qualities, so that the evidence that was offered was in part at least cumulative and not in rebuttal and might properly have been excluded for that reason. But we think that it cannot be said that it was wrongly excluded for the reason given by the presiding judge. The offer related not to a fact but to what was in effect the belief or opinion of the witness, and, assuming that the matter was one on which expert testimony was admissible, the presiding judge may have thought, and for aught that appears did think, that the witness was not sufficiently qualified as an expert to render his opinion admissible, and that was a question for him to determine. Hawks v. Charlemont, 110 Mass. 110.

Requests for rulings were made by the plaintiff and the defendant respectively. Some of them were given and others refused. Two of the requests made by the plaintiff, the fifth and sixth, though they might have been refused in the form in which they were made, were in substance given with modifications. None of the requests that were given, were given in the exact language in which they were made. The presiding judge was not obliged to do that. It was sufficient if he gave them in substance and effect. Neither was he obliged to single out one phase of the case because requested to do so and lay upon it a disproportionate emphasis as compared with other matters involved in and necessary to a proper consideration of the case. Taking the

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case as a whole, it does not seem to us that there was any reversible error.

There was evidence tending to show that the train broke apart near the rear end at or in the neighborhood of the crossing. The parties differed as to where on the line of the railroad and where in the train the breaking apart occurred. It appeared that it was a common thing for a train to break apart. The plaintiff contended that the accident was caused by a collision between the rear end of the train which had broken off and the horse and buggy in which he was riding, and in his second request asked the presiding judge to rule "That if the jury find that the train broke apart and detached cars proceeded over the crossing without lights or warning signal, and came in collision with the team in which the plaintiff was riding, this would be direct evidence of negligence on the part of the defendant." The presiding judge refused to rule as thus requested. The ruling asked for was evidently based upon the following language from the former opinion ( 212 Mass. 596, 598): "And they [the jury] might find direct evidence of negligence in conduct which allowed cars detached from a train, without lights or warning signal and with the rear brakeman absent from his post of duty, to pass over an unguarded grade crossing." But the ruling requested went further than this, and instead of asking the presiding judge to rule that the jury could find direct evidence of negligence in the conduct described, asked him to rule that it constituted as matter of law direct evidence of negligence. This he could not do. If the facts in regard to the breaking apart of the train and of the collision had been agreed or were uncontradicted, then it would have been a question of law whether they warranted a finding that the defendant was negligent. But the parties were at issue as to the circumstances under which the train broke apart and the collision took place, and it was a question for the jury whether the breaking apart was due to negligence on the part of the defendant or not. In the absence of any explanation as to what caused the train to break apart, the jury would have been warranted in finding that the breaking apart was of itself evidence of negligence, or, as stated in the former opinion, was direct evidence of negligence; Griffin v. Boston & Albany Railroad, 148 Mass. 143; but it could not be so ruled as matter of law. It might be possible that the

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train broke apart from causes for which the defendant could not fairly be held accountable. The instructions that were given were sufficiently favorable, to say the least, to the plaintiff. The jury were told that "the fact of the accident with the surrounding circumstances" was sufficient to raise some presumption of negligence, but they were not to rely upon presumptions alone but were to take the whole evidence and see whether it satisfied them by a fair preponderance that the defendant had failed in some duty it owed to the plaintiff and was negligent. We think that the jury must have understood from this that the fact that the train broke apart afforded a presumption of negligence on the part of the defendant and could be so regarded by them in considering the case. They were not told that unexplained they could find evidence of negligence in the breaking apart of the train, which was all that the plaintiff was entitled to, but were told in effect that the accident itself, which was caused or could have been found to be caused, by the breaking apart of the train, could be regarded by them as presumptive evidence of negligence. This was, as we have said, sufficiently favorable to the plaintiff.

The facts recited in the third and fourth rulings [Note p17-1] requested, if

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they were facts, would have constituted evidence of negligence on the part of the defendant and of due care on the part of the plaintiff, but would not have warranted the presiding judge in directing the jury as matter of law to return a verdict for the plaintiff if the jury found, as requested in the third ruling, that the plaintiff was struck by the second section of the train, or in ruling as requested in the fourth ruling that the facts there recited constituted negligence on the part of the defendant as matter of law, and the requests were for these reasons properly refused.

The fifth and sixth rulings requested were to the effect that; if the brakemen were absent from their post of duty it would be direct evidence of negligence on the part of the defendant. These, as already observed, might have been refused in the form in which they were presented, for reasons previously stated in connection with the second request. But the presiding judge gave them in substance with the modification that the jury might consider the position of the brakemen if they found that it had anything to do with the accident. "If, for instance," the presiding judge said, "a brakeman under the rules should have been in the monitor, would that have helped the plaintiff and saved this accident? If it would, the fact that he was not there is some evidence of negligence; if his being there would not have helped the plaintiff, then it is of no consequence in this case." This was correct.

We discover no error in the manner in which the presiding judge dealt with those requests of the defendant that were given, nor do we discover any error in the rest of the charge.

Exceptions overruled.

W. A. Davenport, (H. A. Weymoth with him,) for the plaintiff.

D. Malone, (C. N. Stoddard with him,) for the defendant.