219 Mass. 389 | Mass. | 1914
There were three counts, the first charging a neglect to provide a suitable platform, the second that the train by which the plaintiff was struck was negligently operated, and the third that it was operated at an excessive speed.
I. As to the first and third counts. There was no evidence to warrant the submission of the case to a jury upon either of these counts. The platform was well constructed, of proper materials, and there was no evidence that it was not of sufficient size to meet the reasonable demands of the travel. The only evidence in support of the allegation of excessive speed contained in the third count was the statement of one witness that “the train was bowling along pretty fast when it went past me. It was going pretty fast when [the plaintiff] was lying on the platform.” This is not enough. Savageau v. Boston & Maine Railroad, 210 Mass. 164, 168.
2. As to the second count. The platform was situated between tracks numbered 2 and 3. The plaintiff had alighted from the train on track No. 2, which was upon the left side of the platform, and the train by which he was struck was upon track No. 3, which was on the plaintiff’s right as he was going up the platform. The distance from the outer edge of the curbing of the platform to the nearest rail of track No. 3 was “twenty-two and one half inches at the minimum and twenty-four inches at the maximum.” As to the manner in which the accident occurred the plaintiff in his direct examination testified as follows: “Just before the accident I was on the concrete walk, within perhaps two feet of the curbing; I was nearest track No. 3, the right hand track. There was, I think, as large an amount of people as I
Destito, a witness called by the plaintiff, testified that at the time of the accident the plaintiff “was about two feet away from the curbstone.” Bador, another witness called by the plaintiff, testified that when the plaintiff “was hit he [the plaintiff] was right close to the granite curbing, very near to it. His feet were on the concrete, but he was on it close to the curb. . . . Sometime after the accident I examined the engine up in the front of the station. I don’t know what sort of an engine it was as to size. I don’t know much about engines, but it was one of the large type, I should say. I looked especially at the front end to
At the close of the plaintiff’s evidence “the defendant stated to the court that it wished to be heard on a question of law.” Before hearing this motion the judge evidently desired to know the width of the platform, and, at the request of the judge, one Witkins, a civil engineer, testified that he had measured the platform; and he gave the distances. These seem to have been substantially embodied in the record as the true measurements. These measurements having been put in, “upon the further request of the court that before argument of the question of law, testimony be introduced as to the amount of overhang of the locomotive which struck the plaintiff, the defendant introduced testimony that the beam of the engine which struck the plaintiff projected twenty-two inches beyond the inside of the rail, and that the cylinder of the same engine projected twenty-two and one half inches beyond the inside of the rail.” The defendant was not requested by the judge to rest before arguing its motion to direct a verdict for the defendant, and did not rest.
Upon reading this record it is plain that both the judge and the counsel understood that the question of law upon which the defendant desired to be heard was the one subsequently formally presented to the judge, namely, that upon all the evidence the plaintiff was not entitled to recover; that in order to rule intelligently upon that question the judge wanted some more definite information than had yet been put in as to the dimensions of the platform, the distance between its outer edge and the nearest rail of track No. 3; and that after the measurements as to these matters were put in he desired still further to know whether and to what extent the engine projected over the platform. This further testimony was introduced. After it was put in the plain
The case therefore must be considered upon the assumption that the measurements as to the size of the engine are correct. Upon this assumption no part of the engine overlapped the platform. The accident was due to the fact that the body of the plaintiff protruded over the outer edge of the platform. There is shown no negligence as to the management of the train; and that is so even if the bell was not rung.
Exceptions overruled.