161 Mass. 26 | Mass. | 1894
The plaintiff’s intestate was killed by an express train which struck him as he was crossing the defendant’s tracks in the rear of another train. There is no contention .that, unless he was a passenger at the time, he was himself in the exercise of due care, but if he was a passenger it is not necessary to show that he was in the exercise of due diligence in order to recover under Pub. Sts. c. 112, § 212. Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211.
We are of opinion that the deceased had ceased to be a passenger before he was struck by the express train, and that the verdict for the defendant was rightly ordered. The deceased had purchased his ticket for the Easton station, and had ridden in the train as a passenger until the train had nearly reached that station. The train had then been stopped a short distance from the station to await the passing of an express train approaching from the other direction. The name of the station had not been called, nor any express or implied invitation given to passengers to leave the train where it then stood; but the stop was one which the deceased must have known was for some purpose other than the discharge of passengers. It is not contended that he left the tram for any purpose except to pursue his homeward route on foot, and he had less distance to travel on foot, if he
Judgment on the verdict.