156 Mass. 316 | Mass. | 1892
In the opinion of the court upon this case, when it was formerly before us, it was said that, “ if the plaintiff’s intestate was on the defendant’s track without right, the action is not maintainable, unless there was wilful or reckless misconduct on the part of the defendant, or of its agents.”. McCreary v. Boston & Maine Railroad, 153 Mass. 300, 304. At the second trial, it appeared that at the time of the accident the intestate was crossing one of the defendant’s tracks at a place where he had no right to cross. Although evidence was offered tending to prove that when struck by the train he was lying upon the track in an unconscious and helpless condition in an epileptic fit, he came there in an attempt to cross the track at a place where he had no right so to do. Knowingly standing or walking upon a railroad track without right is prohibited by statute. Pub. Sts. c. 112, § 195. He was therefore upon the railroad contrary to law. Because the death was instantaneous, and there is no action at common law, no action can be maintained except one given by
