HARRY K. COPITHORN vs. BOSTON AND MAINE RAILROAD.

COX, J. This case comes here after a second trial, the plaintiff's exceptions, taken at the first trial, having been sustained. See Copithorn v. Boston & Maine Railroad, 301

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Mass. 510. The jury returned a verdict for the plaintiff. It is unnecessary to review the evidence in detail except in so far as it relates to the defendant's exceptions.

1. The automobile that the plaintiff was operating was in collision with the engine of the defendant's train at a public grade crossing in New Hampshire. The plaintiff, in direct examination, testified that in his opinion the speed of the train was thirty to forty miles per hour. On cross-examination he testified that he did not know whether he formed his judgment of the speed at the time he saw the train; that, after the accident, he had not "reasoned" that it was going at that speed although he had testified to that before; that he "could reason that now"; that when he said the train was travelling at that speed that was the result of his reasoning; that he did not make any estimate as to the speed at the time, but afterwards he did "some reasoning about it," and that, as a result, he then said (at the trial) that the speed was thirty to forty miles an hour. Thereupon the defendant asked that the testimony as to speed be struck out and excepted to the refusal of the judge to strike it out. On redirect examination the plaintiff testified that the train was about seventy-five feet from him when he first saw it; that he had probably driven an automobile over two hundred thousand miles; that from what he saw, he was able to give an opinion as to the speed and that it was thirty to forty miles an hour. On recross-examination he testified that he did not think he formed any judgment of anything at the time. In reply to the question whether his answer as to the speed was the "result of reasoning after the accident," he testified, "No, that is more recalling my sight at the time," and that he formed no opinion at the time. In answer to the question, "Afterwards, thinking it over, you reasoned it must have been going thirty to forty miles an hour," he testified, "No, I don't have to reason it out. I make that statement from the way the thing looked to me. I can see it now" but that he did not think he formed any opinion at the time he saw the engine coming that it was going thirty to forty miles an hour.

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The defendant concedes that a witness who is not an expert may give his opinion as to the speed of a train, if that opinion is based upon observation. Commonwealth v. Sturtivant, 117 Mass. 122, 133, 137. Crafts v. McCobb, 303 Mass. 172. See Johnston v. Bay State Street Railway, 222 Mass. 583, 585, 586; Barney v. Magenis, 241 Mass. 268, 272. But it contends that the opinion of such a witness is not competent if it is the result of reasoning or calculation made after the observation. We are of opinion that there was no error in the refusal of the judge to strike out the plaintiff's testimony as to the speed of the train.

In Commonwealth v. Sturtivant, 117 Mass. 122, the court said, at page 133: "The exception to the general rule that witnesses cannot give opinions, is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning; but includes the evidence of common observers, testifying to the results of their observation made at the time in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to a jury." The defendant contends that the opinion or conclusion of the plaintiff as to the speed, in order to be competent, must have been formed or reached at the very time the observations were made. It is true that in the Sturtivant case, in addition to the quotation above, the court, in using the illustration of the panel of a carriage door that was broken by a collision, said, at page 135, that, if the panel itself were introduced in evidence, the jury would be competent to decide what appearances would follow from blows delivered at different angles and points. But "If it cannot be, the witness who saw it may describe, as well as he can, what he saw, and state the conclusion he formed at the time." In Commonwealth v. Kennedy, 170 Mass. 18, 23-24, an apothecary was permitted to testify that "to the best of his knowledge, belief, and recollection," he sold poison to the defendant. Holmes, J., said, at page 24: "The identity of a third person always is a matter of inference and opinion, but it is an opinion which any one who remembers facts on which to base the inference may give. Commonwealth v. Williams, 105 Mass. 62,

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67. Commonwealth v. Sturtivant, 117 Mass. 122, 133. Commonwealth v. O'Brien, 134 Mass. 198, 200. See Commonwealth v. Moinehan, 140 Mass. 463, 464. The only objection to the form of the question was that it opened a loophole for an answer with only an uncertain memory of the sensations and impressions from which the inference was drawn. No attention seems to have been called to matter of form, or to this aspect in particular, and so far as we can judge the witness answered with a sufficiently definite recollection of what he saw to warrant his giving his opinion." In Ross v. John Hancock Mutual Life Ins. Co. 222 Mass. 560, a witness was permitted to give his opinion as to whether the deceased spoke loud enough for the operator of the elevator to hear her when she asked to be let out at the ninth floor, and the court said, at page 562, that, even though the judgment or estimate necessarily involves more or less of opinion or inference as to familiar objects and well known matters, it was admissible. See Eldridge v. Barton, 232 Mass. 183, 187; Morrissey v. Connecticut Valley Street Railway, 233 Mass. 554, 557; McGrath v. Fash, 244 Mass. 327, 329; Correira v. Boston Motor Tours, Inc. 270 Mass. 88, 90. In Crafts v. McCobb, 303 Mass. 172, where a witness was permitted to testify that the appearance of a gap in a hedge bed indicated to him its cause, and was permitted to give that cause, the court said, at page 175: "He was manifestly testifying as to the result of his observations made at the place of the plaintiff's fall and giving a conclusion based on what he there saw. . . . The testimony of the witness to which exception was taken conveyed the impression which the things he saw made upon him." See Noyes v. Noyes, 224 Mass. 125, 129-130.

We are of opinion that the testimony of a lay witness as to results based upon actual observations is not inadmissible even if the conclusion as to those results is not reached at the actual time of the observation. In the case at bar, no question is raised that the plaintiff did not see the train, and the vividness of his recollection may be found in his statement that he could "see it now." In the circumstances

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of the case, we are of opinion that the jury was warranted in believing that he could, and that where, as here, it could have been found that his testimony as to the speed, instead of being the result of reasoning, was "more recalling my sight at the time," it was competent. Where, as here, such knowledge as the plaintiff had as to speed is based upon an impression received from the exercise of his own senses, to which is added such experience as he had had which could be found to enable him to give an intelligent statement as to the results that followed from that knowledge, we are of opinion that such testimony is not inadmissible where the conclusion of fact is not reached at the very moment when the knowledge is acquired. It is important to know whether the observations of the witness are sufficiently within his memory so that the results that follow therefrom by way of conclusion and inference, whenever made, are reliable. After all, it is not the mere opinion that is thus given by a witness "but a conclusion of fact to which his judgment, observation, and common knowledge has led him in regard to a subject matter which requires no special learning or experiment, but which is within the knowledge of men in general." Commonwealth v. Sturtivant, 117 Mass. 122, 133. Ross v. John Hancock Mutual Life Ins. Co. 222 Mass. 560, 562. Barney v. Magenis, 241 Mass. 268, 272. See Wigmore on Evidence (3d ed.), Sections 656-659, 1924-1929.

2. The defendant excepted to the refusal of the trial judge to rule that the burden was on the plaintiff to prove that he did not violate the N. H. Pub. Laws (1926) c. 249, Section 22, which provided, in effect, that an automobile operator, such as the plaintiff in the case at bar, upon passing a warning sign required by law to be maintained on highways at grade crossings, should reduce the speed of the vehicle so that, within a distance of one hundred feet from the nearest rail of such crossing, such vehicle should not proceed at a greater speed than ten miles per hour. (See Copithorn v. Boston & Maine Railroad, 301 Mass. 510, 516, 517.) Not only was this request refused, but the judge instructed the jury that the burden of proving a violation of this statute

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was upon the defendant. In this there was no error. The defendant relies upon the case of Klegerman v. New York, New Haven & Hartford Railroad, 290 Mass. 268.

That case was an action of tort brought to recover compensation for injuries alleged to have been caused to the plaintiff at a grade crossing through the fault of the defendant. There were two counts in the declaration as submitted to the jury, one at common law for negligence, and one under the special provisions of the statute for failure to give the statutory signals of sounding a whistle and ringing a bell on a locomotive engine before crossing a public way. (G. L. [Ter. Ed.] c. 160, Sections 138, 232.) One question was whether the plaintiff failed to observe the provisions of G. L. (Ter. Ed.) c. 90, Section 15, which provides that every person operating a motor vehicle, upon approaching a railroad crossing at grade, shall reduce the speed of the vehicle to a reasonable and proper rate, and shall proceed cautiously over the crossing. It was held that, as to the common law count, the burden of proof was upon the plaintiff to show that no violation on his part of that statute contributed to his injury. In support of this, the case of Tazzini v. Boston & Maine Railroad, 277 Mass. 108, was cited. That case was an action at common law and a violation by the plaintiff of said Section 15 of c. 90 was also involved. It was held that the burden was on the plaintiff to show that he proceeded cautiously over the crossing, citing Fortune v. New York, New Haven & Hartford Railroad, 271 Mass. 101. But in the Fortune case, the plaintiff relied solely on the count in his declaration containing allegations that the defendant failed to give the signals required by statute. There again the question was involved of the violation by the plaintiff of said Section 15 of c. 90. It was held, without citation of authority, that the burden was on the plaintiff to prove that he complied with the provisions of that section. But in the Klegerman case it was pointed out, at page 275, that this statement in the Fortune case, that the burden of proof of compliance with said Section 15 was on the plaintiff, was not necessary to the decision, and that it was an inadvertent dictum, not only in that case, but in

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others cited, and that it must be disregarded in so far as it related to the count in the declaration based upon the failure of the defendant to give the statutory signals. In the Tazzini case, the case of Jones v. Andover, 10 Allen, 18, is also referred to, but in Conroy v. Mather, 217 Mass. 91, the Jones case, with others, was considered and not followed.

The Conroy case was an action at common law. One question there was as to the effect of the fact that the automobile, in which the plaintiff was riding when injured, was not duly registered. In a carefully considered opinion by Sheldon, J., it was held that the trial judge was right in refusing to rule that the burden was on the plaintiff to show that the automobile was registered according to law, and in instructing the jury that the burden was on the defendant to show that it was not so registered. Many cases were cited, which, it was said, held that it was for the plaintiff to show the lawfulness of his conduct either on the ground that otherwise he fails to show a lawful contract where he sets up a contract, or because it had been considered that the burden, which rests upon a plaintiff who claims compensation for the injurious results of another's negligence, is to show the absence of contributory negligence on his part and involves the necessity of showing that no violation of law by him contributed to the happening of those results. But the court said, with citation of authorities, that the recent tendency had been rather to restrict than to extend this doctrine, and, with further citation of our own cases, that it had been held that a defendant who, in bar of an action either of contract or of tort, relies upon the unlawful conduct of the plaintiff, must himself set up and affirmatively prove that defence, at least if it has not been set up or admitted by the plaintiff. The ultimate conclusion was that both upon principle and upon the present weight of authority the judge rightly ruled that the burden of proving illegal conduct of the plaintiff rested on the defendant. The Conroy case is not mentioned in the Fortune, Tazzini or Klegerman cases.

In Lincoln v. New York, New Haven & Hartford Railroad, 291 Mass. 116, decided less than two months after the

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Klegerman case, the action was of tort with counts in the declarations, one at common law for negligence, and one under the statute for failure to give the required signals. The injury occurred at a grade crossing of the railroad with a highway. The violation by the plaintiff of the provisions of said Section 15 of c. 90 was involved, and it was said, at page 118, that "The burden of proof was upon the defendant to prove either the contributory negligence of the driver of the automobile, G. L. (Ter. Ed.) c. 231, Section 85, or her violation of the statute, G. L. (Ter. Ed.) c. 90, Section 15. Klegerman v. New York, New Haven & Hartford Railroad, 290 Mass. 268, 275." It is to be observed that the reference to page 275 is to the portion of the opinion in the Klegerman case that deals with the question of the burden of proof under the statutory count, but also where it is said that "It follows that the ruling of law in the order for entry of verdicts under leave reserved, to the effect that the burden of proof of showing that the plaintiff did not violate G. L. (Ter. Ed.) c. 90, Section 15, in the common law action was on the plaintiff, was right; but that the ruling that the same burden of proof rested on the plaintiff in the action under G. L. (Ter. Ed.) c. 160, Sections 232, 138, was erroneous." In the Lincoln case, however, there is no discussion of any apparent inconsistency in the two opinions, and the Conroy case is not mentioned.

It seems that the decision in the Klegerman case, in so far as it relates to the burden of proof on the common law count, rests upon nothing more substantial than the remark in the Tazzini case, which, in turn, rests upon the bald statement in the Fortune case, which was pointed out to be erroneous in the Klegerman case. The Klegerman case wholly ignores the Conroy case and the many cases that have followed it, and we find the Lincoln case in sharp and irreconcilable conflict with the Klegerman case. If it is suggested that the Klegerman case establishes a rule in common law actions applicable only in cases of injuries at grade crossings, we find no justification for any such discrimination. The rule is plainly in conflict with the general rule established after careful consideration in the Conroy

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case. The Klegerman case has not been followed as to the point now under consideration. It was pointed out in Brown v. Boston & Maine Railroad, 302 Mass. 90, 92, that that case did not require a reconsideration of the accuracy of the statement in the Klegerman case that, in an action at common law, the burden of proof is upon the plaintiff to show that no illegal act of his contributed to his injury, as the plaintiff in the Brown case was barred as matter of law and no question of burden of proof was open. The Lincoln case was cited by way of comparison with the Klegerman case. The rule in the Conroy case, however, has been followed repeatedly. Dean v. Boston Elevated Railway, 217 Mass. 495, 497. Graustein v. Wyman, 250 Mass. 290, 297. Walsh v. Alfred Sears Co. 270 Mass. 296, 297. Balian v. Ogassin, 277 Mass. 525, 531. Potter v. Gilmore, 282 Mass. 49, 56. Brewer v. Hayes, 285 Mass. 144, 145. Grover v. Smead, 295 Mass. 11, 12. Faria v. Veras, 298 Mass. 117, 119. Hunt Drug Co. v. Hubert, 298 Mass. 195, 196. MacInnis v. Morrissey, 298 Mass. 505, 506. Herman v. Sladofsky, 301 Mass. 534, 538 (an interesting illustration). Bridges v. Hart, 302 Mass. 239, 242. Beauvais v. Springfield Institution for Savings, 303 Mass. 136, 144. LeBlanc v. Cutler Co. 305 Mass. 283, 285. Neu v. McCarthy, ante, 17, 23-24, Dunn v. Merrill, ante, 174. See Dapson v. Daly, 257 Mass. 195, 197; Broughton v. Boston & Maine Railroad, 290 Mass. 80, 82.

Accordingly, we are of opinion that so much of the opinions in the Tazzini and Klegerman cases as holds that the burden of proof is on the plaintiff in a common law action to show that no illegal conduct of his contributed to his injury should be overruled, and that there was no error in the case at bar in the denial of the defendant's request as to the burden of proof.

3. Finally, the defendant contends that there was error in the denial of its request that there was no evidence that warranted a finding that the failure to give statutory signals was "the proximate cause of the injury." The trial was had upon the declaration at common law alleging the general negligence of the defendant and negligence in the operation

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of the train. See Copithorn v. Boston & Maine Railroad, 201 Mass. 510, 511, 519. The jury could have found that the statutory signals were not given. But the plaintiff testified that he saw the flashing red signal light as he went toward the crossing and knew that a train was coming across the highway. The request well might have been given for reasons stated in Morier v. Hines, 81 N. H. 48, 54-57. See Welsh v. Concord, Maynard & Hudson Street Railway, 223 Mass. 184, 186; Anger v. Worcester Consolidated Street Railway, 231 Mass. 163, 165; Rizzo v. Ahern, 278 Mass. 5, 6, 7; Byrne v. Dunn, 296 Mass. 184. If, however, the jury believed that the statutory signals were not given, this fact could be considered as bearing upon the general question of the defendant's negligence. See Lydon v. New York, New Haven & Hartford Railroad, 235 Mass. 469. The plaintiff testified that he stopped his automobile the instant he saw the flashing light, and that if it had not been for the location of this light, he would not have had an accident. But he also testified that when he looked out the window of his automobile he was listening and heard no whistle or bell or sound of any kind. In the unusual circumstances of the case, it cannot be said that the jury was not entitled to consider the evidence that no signals were given.

Furthermore, we are of opinion that there was no reversible error in the refusal of the request in question, and that the case comes within the rule elaborated in Barnes v. Berkshire Street Railway, 281 Mass. 47, 50. In the case at bar one of the important issues was whether the defendant was negligent. Even if the failure to give the statutory signals was not the proximate cause of the plaintiff's injury, it does not necessarily follow that the failure did not contribute in some degree to his injury. The request presented no issue decisive of the case, and, although the judge might have given it, he was not required to do so. See Marangian v. Apelian, 286 Mass. 429, 437; Haggerty v. Sullivan, 301 Mass. 302, 305; Kurland v. Massachusetts Amusement Corp. 307 Mass. 131, 140; Lakeville v. Cambridge, 307 Mass. 433, 437.

Exceptions overruled.