240 Mass. 150 | Mass. | 1921
These two actions of tort for the death and conscious suffering of Fauntley M. McKnight were tried together in the Superior Court. A verdict for each of the defendants was directed.
The plaintiff’s intestate, while driving an automobile at a place where a way leading to the premises of the Avery Chemical Com-
We consider first the case against the Avery Chemical Company. The plaintiff’s intestate came upon its premises to deliver merchandise purchased from his employer. He was there at the implied invitation of the chemical company, and it owed him the duty of exercising reasonable care to keep the driveway in a safe condition for him to use. As was said in Shaw v. Ogden, 214 Mass. 475, 476, the duty rested on this defendant “of warning him against any dangers attendant upon its use which were not known to him and which either were known or in the exercise of reasonable care ought to have been known” by the defendant. There was, however, no defect in the driveway and this defendant was not responsible for the manner of operating the trains. While the cars standing on the spur track obstructed the view of the approaching train, this obstruction was open and obvious and it was not a breach of duty on the part of this defendant to fail to warn him of its existence. The defendant knew that signals were not givén by passing trains, and it had requested. the railroad company to signal the approach of trains at this crossing. The request was not granted, but the chemical company did not fail
In the case against the Boston and Maine Railroad, the record shows that the plaintiff was injured January 22, 1916. The writ in the action is dated May 18, 1917. Even if the plaintiff could recover for the negligence of the defendant causing the death of his intestate, the action was not brought within one year after the date of the injury, as required by the statute. St. 1907, c. 392. Crosby v. Boston Elevated Railway, 238 Mass. 564.
There was evidence that the plaintiff’s intestate consciously suffered; and it remains to be considered whether the plaintiff is entitled to recover on this ground. There was no evidence that the driveway on which McKnight was travelling when injured, was either a highway, town way or travelled place within the meaning of R. L. c. Ill, § 188. Coakley v. Boston & Maine Railroad, 159 Mass. 32. Stewart v. New York, New Haven & Hartford Railroad, 170 Mass. 430. It did not appear that the planking on the crossing was constructed or maintained by the railroad
The exceptions to the exclusion of the evidence are not argued and we treat them as waived.
In both cases the exceptions must be overruled; and it is
So ordered..