294 Mass. 488 | Mass. | 1936
This is an action of tort in which the plaintiff seeks to recover damages for the alleged conscious suffering of his intestate, Philomena Allicia, caused by the alleged wilful, wanton and reckless conduct on the part of the defendant, its agents or servants, in the running, operating and managing of one of its trains. The defendant’s answer is a general denial, and allegations that the plaintiff’s intestate was not in the exercise of due care, that she was guilty of gross negligence, that she was trespassing upon the property of the defendant at the time of the accident, and that she was acting in violation of law. The defendant, at the close
The bill of exceptions states that the pleadings and the photographs of the locus marked as exhibits are made a part of the bill, and that the bill contains all the material evidence necessary to decide the questions of law raised by it. In his brief the plaintiff states the questions of law, which he presents to this court, to be as follows: “1. Is there sufficient evidence in the case to sustain the verdict for the plaintiff on the issue of wilful, wanton and reckless conduct on the part of the defendant’s operator of the train which struck the plaintiff’s intestate?” “2. Is there sufficient evidence in the case to sustain the veidict for the plaintiff on the issue of conscious suffering on the part of the plaintiff’s intestate?”
On the evidence most favorable to the plaintiff the jury would have been warranted in finding that the intestate, on June 24, 1931, was fifteen years of age; that at about noon on that day she, with a girl companion, Catherine Buttiglieri, crossed a field onto the location of the defendant’s railroad, and walked beside the tracks in the direction of Lynn until they came to a trestle, across and upon which the railroad tracks ran; that this trestle, which was sixty feet long and twenty-two feet wide, was made up of ties, spread six to eight inches apart, with no flooring beneath them; that beneath the trestle were sand, rocks and water; that at that point the girls went onto the railroad tracks and started to cross the trestle; that the intestate was afraid to cross and for a time held onto the coat of her companion
We do not think the evidence warranted a finding that the impact was not likely to have rendered the intestate immediately unconscious, or that conscious suffering of the intestate was reasonably to be inferred from the fact that as she went through the air down to and upon the rocks below the trestle “she reached up her two arms, with her hands extended.” This action is manifestly consistent both with conscious effort and with purely reflex action. The evidence of conscious action is at most speculative, and does not meet the burden of proof of conscious suffering which is upon the plaintiff, and without which there can be no recovery by the plaintiff. Mears v. Boston & Maine Railroad, 163 Mass. 150. Royal Indemnity Co. v. Pittsfield Electric Co. 293 Mass. 4, and cases cited.
The absence of proof of the alleged conscious suffering of the intestate makes it unnecessary to consider whether the
Exceptions overruled.