274 Mass. 87 | Mass. | 1931
The first of these cases is an action of tort by Ruth Miles, eighteen years of age, herein called the plaintiff, who was injured by reason of falling from or on a foot bridge erected by the defendant over its tracks. The second action is by the father of Ruth to recover for medical expenses furnished to her. The original declaration alleged that, while the plaintiff was walking on a flight of stairs “ which spanned the defendant’s railway track on Short Street, East Boston,” she was injured by reason of the defendant’s negligence “ in the management and control of said stairs.” The amended declaration alleged that the defendant built the bridge, maintained it, invited and permitted the public and the plaintiff to travel on it, and was required to keep it in repair; that the plaintiff, travelling thereon, was injured because of the improper construction and want of repair. It does not appear that any question of pleading was involved. There was a verdict for each of the plaintiffs.
The plaintiff testified that on the day she was injured she lived on Short Street near one end of the foot bridge; that she was going down the stairs, “holding on to the rail at her right ”; that as she was on “ the lowest wooden step above the two concrete steps . . . the bannister swung out and she went to go with it, then righted herself and fell forward.” Photographs of the bridge and of a portion of the house where the plaintiff lived were in evidence. There was further evidence for the plaintiff that “ the part of the bridge that swung out was at the lowest post ”; that the railing “ leading down to the post on the bridge was in a very shaky condition; that the lower post wasn’t firm, it was very shaky, it moved backward and forward, it wasn’t solid ”; that “ if you had your hand on the rail the post would move four or five inches”; that the post “ was loose and wobbly at the bottom and for the last two months was rotted away”; that “prior to the time of the accident . . . [the witness] noticed that every time you go down, as soon as you hit the top of the bottom post it would just sway out about a foot for the
It appeared that in 1914 a petition was brought before the proper authorities requesting a hearing on the erection of a bridge for foot travel over the defendant’s tracks on Short Street. A hearing was had but no action was taken. A release from one Nelson and Louis C. Westlake, “ West-lake being a former owner of the premises where plaintiff lived,” to the defendant “ relative to the erection of the foot bridge ” was in evidence, also warranty deeds from “ Louis C. Westlake to the predecessor in title of plaintiff’s mother and from said predecessor in title to plaintiff’s mother covering the latter’s lot on Short Street.”
The bridge was built by the defendant in 1914. It was agreed that in 1912 a decree was entered discontinuing the private way known as Short Street from Cowper Street to the southeasterly line of the railroad, and in substitution a new way in extension of Cowper Street was laid out. A conveyance from Nelson and Westlake dated February 5, 1914, was in evidence. It recited that West-lake, Nelson and the defendant were the sole abutters upon and owners of a certain private way, describing it; that said private way was the portion of Short Street “ not discontinued by decree of the Superior Court ” of March 1, 1912; that Nelson and Westlake desired for the benefit of themselves, their heirs and assigns and “ of such other persons as said Railroad may permit or allow to use the same ” that “ said Railroad should construct an elevated foot-bridge” across the railroad; that Nelson and Westlake “hereby . . . convey” to the railroad company “ the right to use and occupy any and such portion of that part of the private way above described which lies northeasterly of the middle line of said private way, as may by said Railroad be deemed necessary or convenient for the construction of steps, approaches and supports of an elevated foot-bridge extending . . . over and across the tracks of said Railroad.” The portion of the way over which the steps, approaches and supports may be placed
It is unnecessary to recite the evidence in detail showing that the plaintiff was injured by reason of the defective condition of the stairs. The evidence was conflicting on the question of the existence of a defect, but this was a matter for the jury to pass on. They could find that as the plaintiff was holding the rail “ the bannister swung out and she went to go with it . . . and fell forward.”
The bridge with its approaches was built by the defendant. It was according to the conveyance of February 5, 1914, to be constructed “ with safe and suitable steps and approaches.” It was to be continued only as long as the defendant maintained it and kept it open. The testimony of the defendant’s master carpenter under whose direction the bridge was built showed that it was under his supervision and was frequently inspected by him.
The conveyance called for a safe and suitable structure to be maintained and kept open by the railroad company, and as we construe the agreement it was-to be maintained in a condition of reasonable safety. The responsibility of keeping the bridge safe and secure belonged to the defendant. The conduct of the defendant in entrusting its supervision and inspection to its master carpenter indicates that it undertook the work of keeping it in suitable repair.
The plaintiff’s mother derived her title to the premises in which the plaintiff lived and had her home from the
Childs v. Boston & Maine Railroad, 213 Mass. 91, Kaatz v. Curtis, 215 Mass. 311, and the cases cited by the defendant, are not in conflict. The plaintiff’s mother was
As the plaintiff had the right to recover as one of the family of her mother living in the house adjoining the way, it is not necessary to discuss what her rights were as one of the public in using the bridge. In each case the entry must be
jExceptions overruled.