211 Mass. 573 | Mass. | 1912
By statute there was imposed upon the defendant the duty of keeping in repair the portion of Railroad Street that was crossed by the railroad at grade. R. L. c. 111, § 129. Scanlan v. Boston, 140 Mass. 84. Mack v. Boston & Albany Railroad, 164 Mass. 393.
It being agreed that the defendant was operating a railroad across the street lawfully, its tracks, when properly constructed and maintained, cannot be a defect for which it is liable, even though they may be obstacles to travel. Lawrence v. New Bedford, 160 Mass. 227. Fowler v. Gardner, 169 Mass. 505. There was evidence that at the place of the accident the space between the rail and the planking was from two and a half to three inches, and that there was “a sort of cutting along the edge of the planking, a kind of slivering, as if the flange of a wheel might have slipped along and worn the planking off.” This evidence, although slight, made it a question of fact for the jury to decide whether there was a defect in the way. Gillett v. Western Railroad, 8 Allen, 560.
The defendant, however, was not obliged to keep this portion of the way in repair, except for the purposes of travel; and the plaintiff was not a traveller within the established meaning of that word in the statute creating liability for defects in highways.
Exceptions overruled.