
    ARTHUR QUINBY vs. BOSTON AND MAINE RAILROAD.
    Suffolk, ss.
    Municipal Court of the City of Boston.
    Argued December 14, 1942
    Opinion filed April 28, 1943.
    Present: Carr, Gillen & Riley, JJ.
    
    
      B. A. Sugarmcm, for the Plaintiff.
    
      B. W. Hall, for the Defendant.
   Riley, J.

This is an action of tort to recover compensation for damage to the plaintiff’s automobile.

The plaintiff alleges that while operating his automobile on Bridge Street in the City of Salem, Massachusetts, and while crossing tracks of the defendant railroad at the Bridge Street Crossing, — so-called — said automobile was struck and damaged by an engine negligently driven by the defendant’s agents or servants, after said automobile had been entrapped between two sets of gates, negligently and carelessly operated by the defendant’s agents or servants; and that the defendant gave no warning of the approach of the train, by either whistle or bell. The defendant’s answer consists of a general denial and an averment that the plaintiff was contributory negligent.

There was evidence that on March 23, 1934, the plaintiff got into his automobile which was parked by the curbing on Bridge Street, several hundred yards westerly from the crossing; that it was a fairly cold day and the car started with no more than ordinary trouble because of the cold, but there was no sputtering; that by the time the car was some distance from the crossing, it was running smoothly; that the plaintiff proceeded slowly to the crossing and proceeded on to the crossing; that the ground was slippery and there was a little valley across the tracks; that there were hand-operated gates on each side of the crossing about 75 feet apart; that as the plaintiff got inside of the westerly set of gates or the first set of gates, he heard some bells and both sets of gates were coming down; that the plaintiff slowed down and stopped in order to avoid running into the easterly or further set of gates which were down; that when the plaintiff stopped, his car settled in the area between the rails which formed a little gully; that the gates came down in front of him and to the rear of him; that after the gates came down, the plaintiff looked to his right and saw a locomotive approaching. At that time the locomotive had not yet entered the tunnel which was on his right. The exit of the tunnel, or that portion of it which was nearest to the crossing, was 75 yards away. When the plaintiff stopped his car, it was on the rails, and when he stopped in order to avoid striking the gates, the motor of the plaintiff’s car stopped; it had not stalled before he came to a complete stop. When the gate-tender saw that the car was in the position that it was in, he started to raise the easterly or second set of gates. The plaintiff tried to start the motor of his car but was unable to do so. Efforts were made by him and others to push the car off the rail, but this was unsuccessful. A railroad flagman at the crossing ran toward the tunnel to signal the engineer to stop. There was no lessening of speed of the locomotive. The plaintiff took his brief case out of the car when he saw that the locomotive was not stopping, and the car remained on the rail until it was struck by the front of the engine. About thirty seconds elapsed between the time the car stopped to avoid hitting the gate and the collision.

There was further evidence that the engineer of the locomotive could have seen the crossing before he entered the tunnel; that the plaintiff’s car was on the rail when the locomotive started through the tunnel; that the flagman who signalled for the locomotive to stop was not observed by the engineer. There was also evidence that while the locomotive was in the tunnel, the visions of the engineer and fireman were obscured by smoke and steam; that when the engineer saw the automobile on the track after he got out of the tunnel, he was unable to stop the train before striking the plaintiff’s car. There was further evidence that no whistle of the locomotive was sounded as the train approached the crossing.

Witnesses drew a diagram of the scene of the accident and indicated thereon the course of the plaintiff’s auto and its position at the time of the collision; the course of the train; the position of the gates; and of the tower in which the gate-tender stood. There was evidence that the tower was about 25 feet high; and that the gate-tender was in the tower about 16 or 17 feet above the ground in a position where he could see traffic coming in any direction and crossing the track.

The trial judge made a general finding for the plaintiff.

The defendant, at the proper time, filed ten requests for rulings of law and the trial judge dealt with them, granting some and denying others. Thereafter, within the prescribed time for filing a request for a report the defendant filed a draft report, setting forth verbatim all its requests for rulings and indicating those granted and those denied by the judge, together with a statement that the defendant claimed to be aggrieved by the rulings and refusals to rule as requested.

After the filing of the said draft report, (which serves as a claim of report) but before the trial judge had acted upon it, the plaintiff filed a so-called “motion to dismiss” the defendant’s claim of report; which motion the trial judge denied. The “motion to dismiss” and the order of denial thereon must be treated in accordance with their true nature, irrespective of nomenclature. The “motion to dismiss” was in substance a motion to disallow the defendant’s claim of report and alleged as grounds thereof that the claim of report appearing in the draft report does not contain a recital of the rulings sufficiently full for identification as provided for by rule 28 of the rules of this court.

We Will first consider the motion. The. plaintiff contends that irrespective of the fact that the defendant has set forth each and every request the granting or denial of which it claims to be aggrieved by, together with the action of the trial judge thereon, that the defendant is required to restate all such requests and rulings or refusals to rule in the grievance paragraph of its draft report in order to state clearly and concisely and sufficiently full and accurate for identification, just what it claims to be its grievance. He unquestionably so argues because of the parenthetic suggestion appearing in the Draft Report Model, which is to be found as an appendix to the 1940 revision of the rules of this court.

A Draft Report Model has, appeared as an appendix to editions of our rules since the establishment of the Appellate Division, and is intended as a helpful guide to parties, as' well as tending to uniformity of practice. There is no wording in the rules indicating that such Draft Report Model is a part of any rule and this view seems to be confirmed by the observation in the opinion of the case of Ahern v. Towle, 310 Mass. 695, at page 697, especially as to Rule 28.

It would seem, where a party has set forth in full all the requests for rulings it had presented and has indicated those which the trial judge has granted and those which he refused to grant, followed by a statement that it is aggrieved by the court’s rulings and refusals to rule as requested, that such party has sufficiently complied with the pertinent provision of rule 28. The parenthetic suggestion, " (here state in detail and accurately the rulings given or refused by which the party claims to be aggrieved) ” appearing for the first time in the appendaged Draft Report Model in the 1940 revision of the rules of this court, has undoubtedly caused confusion, as evidenced by the instant case. Accordingly, the trial judge’s denial of the plaintiff’s motion is hereby sustained. Ahern v. Towle, 310 Mass. 695.

We now proceed to consider the merits of the other questions of law contained in the report of the trial judge. Although the defendant claimed to be aggrieved by the trial judge’s rulings and refusals to rule, it has confined its argument and brief to those requests which were denied. We will consider only such requests as are properly argued or briefed in accordance with the general rule as stated in Guinan v. Famous-Players Lasky Corp., 267 Mass. 501, 519. Carangias v. The Market Men’s Relief Ass’n, Inc., 293 Mass. 284. City of Boston v. Dolan, 298 Mass. 346, 355.

Requests numbered 2, 6, 7, 8 and 10, which the trial judge denied, the defendant contends were denied erroneously because the trial judge made no finding of fact. Such contention we believe to be without merit, as the statement of the trial judge appended to her denial of request numbered 7, in the following words, “I find that the gate-tender was negligent” must be read for what it really is, — a finding of fact — which, as such, is not open to review by this Division in the absence of a request directed to the sufficiency of the evidence to warrant such finding.

' The trial judge’s denial of such requests without further comment would have been error,—Bresnick v. Heath, 292 Mass. 293; Strong v. Haverhill Electric Co., 299 Mass. 455; “but there is no reversible error if the ground of refusing a request sufficiently appears else where in the record to show that no harm has been done.” Mazmanian v. Kuken, 285 Mass. 516, 518. While it is true that the trial judge did not make lengthy findings of fact, she did make a clear and definite' finding of fact that the gate-tender was negligent, and that appears in the record.

“The general finding made by the judge in favor of the plaintiff imports the drawing of all inferences in his favor of which the facts are susceptible,” Royle v. Worcester Buick Co., 243 Mass. 143, 145 and whether, or not the gate-tender ’s negligence was causally related to the damage to the plaintiff’s automobile was an inference of which the facts were susceptible and the drawing of which must be considered, as having been imported into the general finding.

The trial judge properly denied requests numbered 2, 6, 8 and 10. Request numbered 7, ‘ ‘ That no presumption of negligence arises from the facts of the accident,” was likewise properly denied. Negligence is a fact to be established by evidence or inferred from evidence produced at the trial. When the facts of an accident are before the court as evidence, as they were in this' case, there is no place for presumptions. Bagnell v. Boston Elevated Ry. Co., 247 Mass. 235.

If the defendant intended to ask the court to rule, “that the mere happening of an accident is not evidence of negligence,” it did not do so. And parties must be bound by the language they employ. While the trial judge did not state that the request was unintelligible, she apparently recognized the necessity of indicating that she was denying it because of her finding of fact, and that she recognized no presumption.

Let the following entry be made:

Report dismissed.

Carr, J.,

dissenting: I agree with the disposition which the majority of the Appellate Division have made of the question of practice raised by the plaintiff’s motion to dismiss the defendant’s draft report but I prefer to .state my own reasons.

The purpose of Rule 28 of this court is to warn the trial judge of the grounds on which the appealing party intends to rely so that the judge may include in his report all the material tending to support his action and to warn the appellee of the issues he must argue in his brief.

The writer of this opinion had assumed that the “Draft Report Model” on page 61 of the 1940 rules and on page 50 of the 1932 rules was a part of the rule. There could be no question that the form, of report used in the case of Ahern v. Towle, 310 Mass. 695 accorded with the “Draft Report Model” in the 1932 Rules and probably little question that the statement of grievances in the pending case conformed to that “Model.” In the 1940 edition of the Rules, however, the form was changed. In the grievance clause the words of the 1932 rule book “claiming to be aggrieved by the rulings and refusals to rule as requested,” were stricken out and the following words were substituted “claiming to be aggrieved by (here state in detail and accurately the rulings given or refused by which the party claims to be aggrieved).” It would not seem to the writer of this opinion that the defendant’s statement of grievances in the pending case was in accordance with the 1940 form.

In the decision in Ahern v. Towle, 310 Mass. 695 supra, although the case was actually tried and appealed while the 1932 rules were in effect, the court refers to Rule 28 then in force as follows: — “That rule, which, so far as material, remains unchanged in the 1940 revision of the Rules of the Municipal Court of the City of Boston.”

In view of this decision it would seem that the action of the trial judge in denying the plaintiff’s motion to dismiss the claim of report must be sustained.

There is no object in trying to distinguish the following cases cited by the plaintiff. Stafford v. The Commonwealth Co., 263 Mass. 240. Rollins v. Perry, 284 Mass. 488. Almeida v. Alsdorf, 291 Mass. 115.

On the merits of the case I cannot agree with the majority opinion.

The plaintiff relied largely on the negligence of the defendant’s engineer. Besides the general allegation of the engineer’s negligence, he devoted about a third of his declaration to the failure of the engineer to ring his bell or sound his whistle. (Gen. Laws, Ter. Ed. ch. 160, sec. 138): — an act, by the way, as useless to stir a stalled automobile as to stir a dead body. If he were intending to rest liability on the negligence of the gate-tender, it is surprising that he did not put in a better case. The defendant’s counsel was evidently attempting to defend the engineer’s conduct as his requests for rulings indicate. Counsel for the defendant stated before the Appellate Division that the trial judge suggested during argument that the case could rest on the conduct of the gate-man. It is not at all clear that the plaintiff could not have prevailed on the basis of the engineer’s negligence other than the failure to sound bell or whistle (cf. Fortune v. New York, New Haven & Hartford Railroad, 271 Mass. 101). There was evidence that the nearest end of the tunnel was 75 yards from the crossing; that the engineer could see the crossing before entering the tunnel at which time the plaintiff’s automobile was on the tracks. Consequently if the engineer had looked carefully and acted accordingly he might have avoided the accident. It appears in the report, as mentioned in the majority opinion, that the judge had before her a diagram of the scene of the accident, showing the course and position of the plaintiff’s automobile, the course of the engine, etc. Though the judge had the advantage of this diagram, it was not before the Appellate Division and consequently of no more value on appeal than a view of which no narrative is contained in the proceedings for review. (Keeney v. Ciborowski, 304 Mass. 371, 372, 374.)

While it is true that the defendant could not insist on having the case decided on any particular theory within the cause of action (Pizer v. Hunt, 250 Mass. 498, 504), it seems obvious that if the decision could have rested on the issues apparently tried the case would not have been so difficult to review. It is reasonable to suppose that time would be saved and justice more clearly established by a new trial. I do not, however, rest the question of new trial on this general ground.

The majority of the court have assumed that the finding for the plaintiff was rested on the conduct of the gate-man, and assuming that “operative effect” was given to the rulings made, I also assume that the finding was based on his conduct.

The question then is whether the evidence makes out a case based, on the conduct of the gate-man. I. think it does not and believe that the defendant’s request 10(a) should have been given. It reads as follows “That on all the evidence, the plaintiff is not entitled to recover because, (a) There is no evidence of negligence on the part of the Defendant, its agents or servants;”

There is doubt in my mind whether the evidence showed that the gate-man was negligent. Apparently the crossing was a busy one, both for trains and for highway traffic. There were two sets of gates and a tower twenty-five feet high in which the gate-man stood; there was in addition a railroad flagman at the crossing. We have no evidence as to the space occupied by tracks; we do not know whether when the first set of gates were coming down the plaintiff had reached the rails. We have no, evidence as to the state of highway traffic at this time. The gate-man was required to act as a prudent man under the circumstances. He owed duties to the general public approaching the crossing from both directions (S. E. Rand Trans. Co. v. Boston & Maine R. R., 273 Mass. 327, 332). By putting down, the gates when he did, he may have risked injury to one automobile to save a number of lives. On this subject the plaintiff has left us to guess. In Warren v. Boston & Maine R. R., 163 Mass. 484 decided nearly fifty years ago in the horse and buggy period, the court thought there was some evidence of negligence on the part of the gate-keeper. 'There the driver got across all the tracks and cried out “For Hod’s sake raise the gates” and the gate-keeper did hot raise them. This, however, is not exactly our case. For what is later to be said on the subject of raising the gates, it should be noticed that both horse and buggy were intact before they were struck by the train and could have been driven from; the rails if' the gate-man had raised the gates.

Assuming, however, that the gate-man was negligent in putting down the gates, I doubt if any one would have held that this act of negligence contributed as cause to the accident, if he put them up again in time for the plaintiff to drive off and if the plaintiff then had refused to move his car nor do I think, if having so put up the gates, his original negligence would have been held the cause of the accident, if the plaintiff could not drive off because of a defect in his car not caused by the action of the gate-tender (Davis v. New York, New Haven & Hartford Railroad, 272 Mass. 217, 222).

One accepted fact seems to be that the lowering of the gates caused the plaintiff to stop his ear. Thereafter the engine of the defendant’s ear stalled but there is not a scintilla of evidence offered by the plaintiff to show why his engine stalled and refused to start. There are many possible causes for the stalling of an engine. In these times when practically every person physically and mentally sound, and of sufficient age operates a car whether he owns it or not," it may be assumed that judges know something about automobiles and can take judicial notice of the simple facts relating to their operation which ordinary people know. At least in Davis v. New York, New Haven & Hartford Railroad, 272 Mass. 217, 222 the court seems to have taken such notice.

It might be that the plaintiff became flustered when the gates camle down in front of him (Green v. Haverhill and Amesbury St. Ry. Co., 193 Mass. 428, 430) and stalled his engine and was unable to, start it through nervousness. The evidence, however, does not show that he became excited or confused. He offered no evidence as to his state of mind although it may be assumed that he was present and testified. After he stopped his car and after the engine stalled he tried to start the motor; then he got out and with the assistance of others tried to push his car off the tracks. He was then collected enough to go to the car, take Ms brief case out of it and then seek a place of safety. The engine may have stalled and refused to start for some physical or mechaMcal difficulty. It is common knowledge that a cold engine may operate at high speed but stop and refuse to start when slowed down. It is common knowledge that an engine may stall and refuse to start because the battery has ‘‘gone dead” or because an ignition wire has jolted loose or because the gasolene has been used up. No evidence was offered in regard to these possibilities. In fact we do not know anything about the condition of,the car. We do not kno,w its age. It may have been at the end of its journey like Holmes’ “OneHoss Shay”.

After the plaintiff’s engine stalled there was time as already stated for the plaintiff to attempt to start it, for him to get out and with the assistance of others attempt to push the car from the tracks and for him to go back to Ms car, get out his brief case and remove himself from danger. The report states that the gate-tender started to raise the gates. Whether he kept on or not does not appear. He may have put them up far enough for the plaintiff to escape. He may have seen that it was useless to put them up further because the plaintiff’s car could not start, and, owing duties to other travelers on the highway, he. may have been prudent in not permitting them to run into danger. If any facts were wanting, it was for the plaintiff to supply them. The burden was on him to show that the defendant was negligent. (Conway v. Boston Elevated Ry. Co., 255 Mass. 571, 574).

In the law of tort for negligence there is no. such tMng as negligence in the abstract. (Tompkins v. Quaker Oats Co., 239 Mass. 147, 149.) So far as liability in this kind of tort is concerned, a. person may be as careless as he pleases if Ms act of negligence does no damage. (Sullivan v. Old Colony Street Ry., 200 Mass. 303), “The general rule is that one cannot be held liable for negligent conduct unless it is causally related to injury of the plaintiff” (Wainwright v. Jackson, 291 Mass. 100, 102).

I think also that the trial judge made an erroneous disposition of the defendant’s seventh request. This request read as follows: “That no presumption of negligence arises from the facts of the accident.” The disposition was as follows: “Denied. I find that the gate-tender was negligent. ’ ’

As already pointed out a finding that the gate-tender was negligent if the negligence did not contribute as cause to the injury is no more important than a statement that the gate-tender had a cold. However, even if such a finding Were pertinent, it did not meet the issue now discussed.

The request was an attempt to state the principle of law as laid down in Patton v. T & P Railway Co., 179 U. S. 658, 663. Adding the letter s to the word fact was a clerical error, apparently first noticed by counsel for the defendant when the writer of this opinion called his attention to it at the hearing before this Division. If the judge was familiar with the Patton case she knew what was meant; if not the request as it stood, stated a correct principle of law. The Patton case laying down the law as applied by the United States Court stated in substance that on proof of an accident on a railroad there was a presumption of negligence as to a passenger in the absence of explanation or proof for there is a prima facie breach of the contract to carry safely, but the presumption did not help the plaintiff in that case who was not a passenger but an employee. The last part of this principle is good law in Massachusetts. There is no such presumption as to negligence of a defendant; the burden is on the plaintiff to prove negligence. In case of doubt he loses. The majority opinion p. 190 recognizes this truth in these words. “When the facts of an accident are before the court as evidence, as they were in this case, there is no place for presumptions.” The defendant probably Would not ask for a much better statement of his principle than this except that the statement suggests that there would have been a place for a presumption of negligence if the facts were not before the court.

The majority opinion seeks to get around the difficulty by relying on Bresnick v. Heath, 292 Mass. 293 and the numerous decisions made necessary by that case; by stating that, (as I understand it) the finding “that the gate-man was negligent” was sufficient and that being a finding of fact it is not open to review; by stating that if there were any defect in the brief finding it was completed by the general finding for the plaintiff; and by stating that the judge recognized no presumption.

Bresnick v. Heath disclosed to the bar a trap for the unwary among the judiciary who seemed to feel an irresistible impulse to deny the now stock form request that the evidence warrants a finding for the defendant. The decisions that have followed that case have been efforts to extricate the unwary from the trap. The request which we are now considering, however, is very different from the ruling requested in. Bresnick v. Heath. The request now considered is not whether the evidence warranted a finding for the plaintiff but as to the effect of certain facts. If the ruling requested had been that the burden of proof is. on the plaintiff’ to show that the accident was caused by the defendant’s negligence, I doubt if the majority would say that the disposition “Denied. I find that the gate-tender was negligent” would be sufficient (cf Clarke v. Mass. Title Ins. Co., 214 Mass. 31). Although presumption is not the same as burden of proof it is closely related to it. As Thayer, Preliminary Treatise on Evidence, says p. 317 “A rule of presumption does not merely say that such and such a thing is a permissible and usual inference from other facts, but it goes on to say that this significance shall always, in the absence of other circumstances, be imputed to them,” . . . (cf Mahoney v. Boston Elevated Ry., 271 Mass. 274, 278, 279). A presumption will throw upon the one against whom it acts, the duty of going forward (Powers v. Russell, 13 Pick. 69, 76, 77). Such a request for ruling as the one before us cannot be disposed of iby talking of something else.

Of course in the face of the 7th and 10(a)th request for rulings the majority cannot seriously contend that the finding made in disposing of the 7th request is not open to review.

The general finding for the plaintiff does not help the situation. The real question under the request now considered is whether the judge reached her general finding by proper steps. (De Young v. Andrews Co., 214 Mass. 47, 50.) In a case where an attempt was made to avoid the consequences of a ruling by a general finding Bolster, C. J. said, “In such a case the argument that the error is cured by the finding goes round in a circle. The real question is, how was the finding made, and under what legal rules” (Lockwood v. Garford Motor Truck Co., 21 App. Div. 236—1924) (cf. Clarke vs. Mass. Title Ins. Co., 214 Mass. 31).

Finally the majority say that the judge “recognized no presumption”. Just where they found this I do not know. If laymlen are judged by external tests (Williston, Contracts Rev. Ed. sec. 94; Hobbs v. Massasoit Whip Co., 158 Mass. 194, 197; Stoddard v. Ham, 129 Mass. 383, 385) a judge should ibe similarly judged. It is what the judge expresses not what he may or may not have concealed in his mind that counts. Appellate judges are not psychoanalysts. Even the best of judges make mistakes (Beck v. Warren Inst. for Savings, 1942 A. S. 1507).

It has been said that where a judge denies a proper request for ruling (meaning of course without adequate explanation) “it must be assumed the judge considered that the request embodied an erroneous ruling of law as applied to the facts of the case, and based his finding upon the assumption that the law was otherwise” (Rooney v. Porter-Milton Ice Co., 275 Mass. 254, 258).

The defeated party, so far at least as he makes proper requests is entitled to know that correct rules of law have been followed by the trial judge in reaching his conclusions (Hetherington & Sons v. William Firth Co., 210 Mass. 8, 17, 18, 19).

In my opinion there should be a new trial. 
      
       2. That in order to recover, the plaintiff must show that the operator of the locomotive knew or in the exercise of due care should have known that the plaintiff’s automobile was on the crossing and unable to get off the crossing in time to stop the train so as to avoid an accident. Denied. (Rulings by trial justice are in bold face type.)
      6. That unless the plaintiff shows that the train could have been stopped before striking the automobile after the engineer discovered it, the plaintiff cannot recover. Denied.
      7. That no presumption of negligence arises from the facts of the accident. Denied. “I find that the gate-tender was negligent”.
      8. That the cause of the accident was some defect in the automobile or the manner of its operation. Denied.
      10. That on all the evidence, the plaintiff is not entitled to recover because, (a) There is no evidence of negligence on the part of the defendant, its agents or servants; (b) The plaintiff was contributorily negligent as a matter of law; (o) The accident was caused wholly or in part by some defect in the automobile or in the manner of its operation. Denied.
     