322 Mass. 91 | Mass. | 1947
This is an action of tort by the administrator of the estate of David E. Guertin, Junior, to recover for the death of the intestate, who was struck on April 5, 1939, by a train operated by the defendants on their tracks at a crossing over a way, known as Day’s Hill Road, in North-bridge. The intestate, aged five years and six months., while visiting with his mother at a house on that road, coasted in a small four wheeled cart down an incline onto the crossing, and was instantly killed by a freight train. , Three counts in the declaration were submitted to the jury who found for the plaintiff on count 1 and for the defendants on counts 2 and 3. The defendants’ exceptions relate to the denial of their motion for a directed verdict on the first count.
Counts 2 and 3 were treated at the trial as based upon an allegation that the accident occurred at a public crossing. The jury’s verdict on those counts under the judge’s charge included a finding that the crossing was not public. Count 1 alleged that the intestate “was properly and lawfully upon Day’s Hill,” and that, while in the exercise of due care, he went upon the railroad crossing and was struck by the train due to the negligence of the defendants.
■ The case was first heard by an auditor, whose findings of fact were not final. We quote certain of his findings, which as prima facie evidence were nob contradicted by other evidence at the jury trial and now must be accepted as true. Cook v. Farm Service Stores, Inc. 301 Mass. 564, 566. “Day’s Hill Road leads westerly from the Providence Road, a State highway. It crosses the railroad in reaching a community where approximately forty to fifty families reside.
There are photographs in evidence, which on the Day’s Hill side of the crossing at least show a rough winding dirt
The plaintiff contends that the defendants impliedly held out an invitation by which the intestate was led to enter upon the crossing. See Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, 373. Assuming the doctrine of the case just cited to be applicable, the plaintiff has not brought himself within it. In fundamental aspects this case cannot be distinguished from our recent decisions in Couto v. Trustees of New York, New Haven & Hartford Railroad, 312 Mass. 23, and McCarthy v. Boston & Maine Railroad, 319 Mass. 470. From the photographs the crossing had the appearance of a country crossing rather than of an ordinary railroad crossing, and Day’s Hill Road did not have the appearance of a public street. The evidence did no more than allow an inference of permissive use and fell short of invitation. It could not properly have been said that the railroad caused the crossing to assume the appearance of a public way, or attempted to direct the deceased across it, or had undertaken to protect the crossing and then failed to do so. In the circumstances, evidence that employees of the railroad put in planking when the crossing was repaired was not enough. Couto v. Trustees of New York, New Haven & Hartford Railroad, 312 Mass. 23, 26-27. Likewise invitation could not be found in testimony as to the habitual practice of the railroad to comply with the statutory duty
Exceptions sustained.
Judgment for the defendants.