Peterson v. New York, New Haven, & Hartford Railroad

222 Mass. 471 | Mass. | 1916

Carroll, J.

This is an action under St. 1907, c. 392, to recover for the death of Peter Peterson who was killed May 3, 1913, while crossing the Dorchester and Milton branch track of the defendant’s railroad, at the Neponset station. The outward station is between the main tracks and the branch track. This station is surrounded by a concrete platform about one foot higher than the tracks. West of the platform is an open space, which is in part Rice Street and in part land of the defendant. Taylor Street, Walnut Street and Wood Street lead into Rice Street. This whole open space was at the same grade as the nearest rail of the branch track. There was no fence or other obstruction separating the defendant’s land from the street, and “the only practical and used way of getting to or from the outward bound station was by crossing this branch track of the Dorchester and Milton Branch Railroad.”

The deceased was not a passenger and there was no evidence that he entered the premises on any business with the defendant. He came from Taylor Street, and, while crossing the branch track, was struck by an engine drawing a freight train and was killed. The accident happened about noon on a clear day. Peterson came down Taylor Street, “looking straight ahead and was walking at a slow pace,” smoking a cigar and walking toward the station in a diagonal direction, away from the train which struck him. As he stepped on the rail, he apparently saw the engine for the first time. It then was “almost on top of him and he made a kind of jump, and when he was about on that rail he was struck by the engine.” Neither the engineer nor the fireman saw the deceased before he was struck. The train was moving at the rate of from six to eight miles an hour; there was evidence that no signal of its approach was given by bell or whistle. The branch track was used only by this freight train once each way in twenty-four hours. There was evidence that in the centre of Taylor Street, forty-five feet from the nearest track, a man could be seen on the track whence the train came one hundred and twenty feet; twenty-five feet from the nearest rail a man could be seen one hundred and thirty-five feet; fifteen feet from the rail a man could be seen one hundred and sixty-eight feet; and there was evidence from the plaintiff’s witnesses that as a train approached, coming round the curve, you could hear the grinding and squeaking of the wheels on the rails.

On this state of facts, even if this were a common law action, we can find no evidence that the deceased used any care, or took any precaution to protect himself from injury. For some distance before he reached the track, if he looked, he could have seen the train, and, if .he listened, he could have heard it approaching. There is nothing to show that this track was abandoned, and the plaintiff’s intestate would not have been justified in making such an assumption. The fact that it was used to a very limited extent did not excuse him from showing by some evidence his use of care. A railroad track is a place of danger and care proportionate to the danger must be used by one who seeks to cross it. As the intestate came to the place of peril, he in no way manifested the exercise of any caution. He apparently gave no attention either to anticipating or avoiding danger. Such circumstances show a lack of common, ordinary care.

The evidence discloses nothing which gave him the right to rely upon a bell or whistle being sounded at this point. Hammond v. Boston Elevated Railway, ante, 270. Plympton v. Boston Elevated Railway, 217 Mass. 137. Smallwood v. Boston Elevated Railway, 217 Mass. 375. O’Brien v. Boston Elevated Railway, 217 Mass. 130. Holian v. Boston Elevated Railway, 194 Mass. 74. Donovan v. Lynn & Boston Railroad, 185 Mass. 533.

If the deceased attempted to pass over a railroad crossing of a highway, in this way, without using his senses, where to some extent he could rely on the statutory signals, he would not be in the exercise of due care. Allerton v. Boston & Maine Railroad, 146 Mass. 241. Chase v. Maine Central Railroad, 167 Mass. 383. In walking over a track which the public were not invited to use as a crossing, and where the defendant was not bound to expect them, he was obliged to use at least equal care. June v. Boston & Albany Railroad, 153 Mass. 79. The arrangement of the station grounds did not amount to an invitation to the public to use them. In Holmes v. Drew, 151 Mass. 578, the defendant laid out and paved the sidewalk on her own land, allowing it to appear as part of the public footway, in order that the public might use it as a sidewalk of the street. See Dahlgren v. Boston & Maine Railroad, 210 Mass. 243.

As the plaintiff’s intestate was not in the exercise of due care, it becomes unnecessary to consider the other questions in the case.

The defendant’s exceptions are sustained, and in accordance with St. 1909, c. 236, judgment is to be entered in the Superior Court for the defendant.

So ordered.