210 Mass. 243 | Mass. | 1911
The plaintiff’s intestate, Maria C. Dahlgren, was killed by a passenger train while walking across the defendant’s tracks near Greendale station in Worcester.
The plaintiff’s intestate alighted from an electric car on West Boylston Street, proceeded by the north end of Howe’s store and over a spur track and was approaching the northbound track when she was struck by the engine of an express train.
It is not contended that Mrs. Dahlgren was on the railroad property by invitation of the defendant. She was not there for the purpose of transacting any business with the defendant or its agents, but was crossing the roadbed as a short cut to the house of her daughter on Mount Avenue, a street about seven hundred and fifty feet west of Central Avenue and parallel with it. If she was on the railroad track without right the defendant cannot be held liable, as there was no evidence of wilful or reckless misconduct on the part of its servants. Wright v. Boston & Albany Railroad, 142 Mass. 296.
The plaintiff’s case is based on the contention that the public had acquired, by prescription, the right to cross the defendant’s tracks at the point where Mrs. Dahlgren was killed. Upon examination of the evidence we are of opinion that this claim of a public prescriptive right is not established.
The railroad was built about 1848. One Isaac Lamb, the owner of a large farm,- by deed dated December 27, 1847, conveyed to the defendant’s predecessor in title the original location of the railroad from a point two hundred and eight feet south- of where the Greendale station now is to a point seven hundred and fifty feet north, bounded by West Boylston Street on the east
About 1882 the Greendale station was built and radical changes were made near the old crossing. Teams could no longer approach the track from Dudley Avenue, and the station platform was constructed partly over the old private way. And it is clear from the evidence that those who crossed the railroad location on foot after 1882 used a route other than that previously in use, as they walked directly across the tracks between Howe’s store and the station. The Lamb private way crossed the tracks from the west side, near the present station platform, diagonally towards the north. From a point on the electric car track in West Boylston Street directly opposite the northeast corner of Howe’s store to the centre of the old Lamb’s way is a distance of eighty-three feet. The path used by the plaintiff’s intestate was the later one that crossed the tracks from Howe’s store to the station. It did not exist previous to 1882, and long before it had been used for the necessary twenty years the St. 1892, c. 275, prohibited the acquisition by prescription of a right of way across any railroad track or location which is in use for railroad purposes. Simpson v. Boston & Maine Railroad, 176 Mass. 359. Nor could a prescriptive right in the more recent way be acquired by tacking together two distinct periods of use of the two substantially different routes. Pope v. Devereux,
The evidence would not warrant the jury in finding that the public had acquired a prescriptive right of way at the place where the plaintiff’s intestate was killed, and the judge was right in directing a verdict for the defendant.
Exceptions overruled.