258 Mass. 279 | Mass. | 1927
This is an action of tort to recover damages for the death of Albert Cotter which occurred on March 9, 1917, while, it is alleged in the first count of the declaration, he was a passenger on a train of the defendant. The case was submitted to the jury solely on the first count.
Upon the entire evidence, considering it in the light most favorable to the plaintiff, a finding was not warranted that the deceased was a passenger; for that reason the defendant’s motion that a verdict be directed in its favor should have been allowed. Merrill v. Eastern Railroad, 139 Mass. 238. Renaud v. New York, New Haven & Hartford Railroad, 210 Mass. 553, 556. Youngerman v. New York, New Haven & Hartford Railroad, 223 Mass. 29. Doherty v. New York, New Haven & Hartford Railroad, 229 Mass. 135.
“One becomes a passenger on a railroad when he puts himself into the care of the railroad company to be transported under a contract, and is received and accepted as a passenger by the company.” Webster v. Fitchburg Railroad, 161 Mass. 298, 299.
The case of Cotter, petitioner, 237 Mass. 68, was before this court upon a petition filed by the plaintiff to establish exceptions, and upon exceptions taken at the trial. The
As the defendant’s motion for a directed verdict should have been allowed, it is unnecessary to consider its requests for rulings. For the same reason the question presented by the plaintiff’s bill of exceptions relating to interest on the verdict has become immaterial.
Plaintiff’s exceptions overruled.
Defendant’s exceptions sustained.
Judgment to be entered for the defendant under G. L. c. 231, § 122.