
    James Conaty vs. New York, New Haven, and Hartford Railroad Company.
    Bristol.
    October 31, 1895.
    November 27, 1895.
    Present: Field, C. J., Knowlton, Morton, Lathrop, & Barker, JJ.
    
      Personal Injuries — Invitation'to cross Railroad Track — Due Care — Negligence — Law and Fact.
    
    In an action for personal injuries occasioned to the plaintiff by being struck by a locomotive engine at a crossing, the j ury may well find that the plaintiff, who had waited for several minutes in front of the closed gates, while several trains passed in each direction, had a right to consider the raising of the gates one half or three quarters of the .way up as an indication that the crossing was free; and as, when he started to cross, he did not omit to look for approaching trains, and another team crossed in safety after the gates began to rise and before the plaintiff was struck, it cannot be said as matter of law that he was negligent.
    Tort, for personal injuries occasioned to the plaintiff while crossing the defendant’s tracks in Taunton, by a collision between the horse and tip cart driven by the plaintiff, and a locomotive engine of the defendant.
    At the trial in the Superior Court, before Hammond, J., the jury returned a verdict'for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.
    
      E. H. Bennett & F. S. Hall, for the defendant.
    
      J. P. Lyons, for the plaintiff.
   Barker, J.

At the crossing there were four parallel railroad tracks, and on the one nearest the plaintiff several high cars were standing on the north or left hand side of the street, obstructing the view of the other tracks in that direction. The plaintiff found the gates down when he reached the crossing, and waited about three minutes, sitting on his cart ten or twelve feet from the gates on the northerly half or left hand side of the street. While he was waiting he saw two or three trains pass in each direction. After these trains had passed, the gate tender raised the gates one half or three quarters of the way up, and the plaintiff then started to cross, looking down the railroad south as soon as he reached the most westerly track, and then turning his head to look north, when he was immediately struck by an engine coming from the north, and which when he started was hidden from him by the cars standing on the westerly track.

The plaintiff’s position with reference to the centre line of the street is immaterial, as the law of the road applies only to persons meeting or passing with vehicles. Pub. Sts. c. 93, §§ 1, 2. A person who is about to cross a railroad is not under all circumstances obliged to stop to look and listen. Clark v. Boston & Maine Railroad, ante, 434. Acts of a gateman or signalman which tend to mislead a traveller into the belief that he may cross with safety, and invitations express or implied, are to be taken into account in determining whether an attempt to cross is negligent. Warren v. Fitchburg Railroad, 8 Allen, 227, 231. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, 377. Bayley v. Eastern Railroad, 125 Mass. 62. Johanson v. Boston & Maine Railroad, 153 Mass. 57. Merrigan v. Boston & Albany Railroad, 154 Mass. 189. Livermore v. Fitchburg Railroad, 163 Mass. 132. Clark v. Boston & Maine Railroad, ubi supra. The plaintiff had waited for several minutes in front of the closed gates, while several trains passed in each direction, and the jury might well find that he had a right to consider the raising of the gates as an indication that the crossing was free. When he started to cross, he did not omit to look for approaching trains. Another team crossed in safety after the gates began to rise, and before the plaintiff was struck. It cannot be said as matter of law that the attempt to cross the tracks under such circumstances was negligent.

Exceptions overruled.  