Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The law of Massachusetts is the lex loci delicti which governs the action. Young v. Masci, 289 U.S. 253, 53 S. Ct. 599, 77 L. Ed. 1158, 88 A.L.R. 170; Cuba Railroad Co. v. Crosby, 222 U.S. 473, 32 S. Ct. 132, 56 L. Ed. 274, 38 L.R.A. (N.S.) 40.
The new road over the crossing, not having been opened to the public at the time of the accident, was a private way, so the appellant urges, in using which the plaintiff was but a licensee and entitled only to have the defendant refrain from injuring him in a wanton and willful manner. If he were but such a licensee, he was entitled to no warning of the approach of the train under Massachusetts law, but on the contrary passed at his own risk so far as the defendant should be negligent only. Wright v. Boston & Albany Railroad Co., 142 Mass. 296, 7 N.E. 866; Coakley v. Boston & Maine Railroad, 159 Mass. 32, 38, 33 N.E. 930; Bourne v. Whitman, 209 Mass. 155, 95 N.E. 404, 35 L.R.A. (N.S.) 701; Sypher v. Director General of Railroads, 243 Mass. 568, 137 N.E. 916.
As the new road was being built by the commonwealth of Massachusetts as part of its system of highways, it is to be presumed that it ran of right across the defendant's tracks. The action of the defendant in placing signs at the crossing was in recognition of this right and of that of workmen constructing the new road to pass over the track at the crossing in performing their work in reliance upon crossing signals being given by the defendant's trains for the safety of such workmen. Such an inducement and invitation to them to cross the track at that point carried with it the correlative duty of the defendant to give the signals the signs called for to warn them of the approach of its trains. Hanks v. Boston & Albany Railroad, 147 Mass. 495, 18 N.E. 218; Murphy v. Boston & Albany Railroad Co., 133 Mass. 121; Sweeny v. Old Colony & Newport Railroad, 10 Allen (Mass.) 368, 87 Am. Dec. 644; O'Connor v. Boston & Lowell Railroad Corp., 135 Mass. 352.The failure to do that was actionable negligence in violation of the duty owed the plaintiff. Davis v. New York, New Haven & Hartford R.R. Co., 272 Mass. 217, 172 N.E. 214. See, also, Cleveland, C., C. & St. L. Ry. Co. v. Weil (C.C.A.) 68 F.2d 48.
Section 15 of chapter 90 of the General Laws (Ter. Ed.) of Massachusetts provided 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." Failure to comply with the statute is punishable by fine. The statute establishes the public policy of Massachusetts relating to the conduct of drivers of motor vehicles passing over railroad crossings. They are subject to the penalty provided if they violate the statute regardless of the happening of an accident, and, when an accident does occur to the injury of the driver of the motor vehicle, the burden of proving compliance with the statute as a condition precedent to his right to maintain an action against the railroad is upon the person injured. Fortune v. New York, New Haven & Hartford R.R. Co., 271 Mass. 101, 170 N.E. 923. Even so, it was for the jury to determine on the facts here in evidence whether the plaintiff's conduct was or was not in compliance with the statute unless the plaintiff was required as a matter of law to stop before crossing the track. The statute does not in terms so require. It is true that some language in the Massachusetts cases would seem to indicate such a requirement. See O'Meara v. B. & M. R.R., 277 Mass. 315, 178 N.E. 525; Gaboriault v. New York, New Haven & Hartford R.R. Co. (Mass.) 193 N.E. 564.
We understand, however, that the requirement to stop exists where looking and listening without stopping will not be as effective to obtain information as to whether or not a train is approaching. When a motor vehicle driver can see and hear an approaching train as well without stopping as he could if he stopped, he is under no statutory duty to stop. As was said by the Supreme Judicial Court of Massachusetts in Carcione v. Boston (Revere Beach & Lynn R.R. Co., 278 Mass. 357, 180 N.E. 216, 217): "The statute expects one who slows in obedience to its mandate to move forward thereafter at a speed which will permit stopping if danger seems imminent." This plaintiff did, so the jury might have found, reduce the speed of his truck to from four to six miles per hour, at which speed he could have stopped it within two feet, and, after looking and listening at a point about one-half a truck length from the track without seeing or hearing a train, proceeded across at that speed until the train bore down upon him and he tried to increase speed enough to get clear. Upon this evidence, the trial court correctly declined to rule as a matter of law that the plaintiff violated the statute. Compare Kinghorn v. Penn. R.R. Co. (C.C.A.) 47 F.2d 588; Silvey v. Lehigh & N.E.R.R. Co. (C.C.A.) 62 F.2d 71.