Phelps v. New England Railroad

Knowlton, J.

The only question in this case is whether the judge should have instructed the jury that the plaintiff’s intestate *100 was guilty of gross negligence, and should' have directed a verdict for the defendant. Plainly there was no evidence that she was in the exercise of due care, and the jury were therefore rightly instructed to find for the defendant on the second count.

The first count is founded upon the Pub. Sts. c. 112, § 213, under which a railroad corporation is liable if one is injured in person or property, or if the life of a person is lost, at a" crossing where signals are required by the Pub. Sts. c. 112, § 163, and where the corporation neglected to give the required signals, and such neglect contributed to the injury, unless it appears that the person was “ guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury.” When a plaintiff’s case is made out in other particulars, the burden of proof is on the defendant to establish gross or wilful negligence, or an unlawful act of the person injured, or of some one representing him, which contributed to the injury, if the corporation would escape liability on this ground.

Where there are no binding admissions, and the case must be proved affirmatively by the testimony of witnesses, the court can seldom if ever rule, as matter of law, that a material fact is proved. The question what is established by testimony is ordinarily a question of fact for the jury.

In the present case the evidence tends strongly to- show that the plaintiff’s intestate was negligent; but some of the important circumstances bearing upon her conduct were in doubt on the evidence, and the jury alone could authoritatively determine them. The defendant sought to prove gross negligence within the meaning of the statute. How much greater is the degree of neglect necessarily existing in gross negligence than that which is always found in negligence that is not gross has never judicially been determined in this Commonwealth. But the use of the words “ gross negligence ” in the statute shows that the Legislature intended a materially greater degree of negligence than the mere want of ordinary care. Galbraith v. West End Street Railway, 165 Mass. 572. Morey v. Gloucester Street Railway, 171 Mass. 164.

We cannot say, as matter of law, that gross negligence on the part of the plaintiff’s intestate was proved in this case.

Exceptions overruled.