211 Mass. 464 | Mass. | 1912
The plaintiff was a trespasser upon the defendant’s track. She went upon it without any invitation or inducement, or even any Hcense or permission, from the defendant. Accordingly the only legal duty which the defendant owed to her was to abstain from doing her any wilful or wanton injury. For mere negligence, even for gross negligence, no matter how great the injury it might cause to her, she could have no redress against the defendant. Khinoveck v. Boston & Maine Railroad, 210 Mass. 170. It is not a question of the due care of the plaintiff or of her parents, and her rights are no greater than if she were of full age.
We find no evidence that there was any such reckless, wanton or wilful conduct on the part of the defendant’s servants as to warrant a verdict in her favor. The failure of the engineer to see her earlier than he did might have tended to show negligence on his part; the fact that the engine was running backward at the rate of speed which was claimed, the time and manner in which warning signals were given, and the failure to stop the train before she was hit, might have been material upon the issue of negligence, or of the degree of such negligence. But taking all the evidence and all possible inferences therefrom in the most favorable light for her, there is nothing to show wilful misconduct or any injurious act done with wanton or reckless disregard of the probable harmful consequences to her. Willis v. Boston & Northern Street Railway, 208 Mass. 589. The case last cited was stronger for the plaintiff than the one now presented, and yet it was held that the defendant was entitled to a verdict. There is nothing in. Yancey v. Boston Elevated Railway, 205 Mass. 162, inconsistent with this.
The case comes within the provisions of St. 1909, c. 236, and the defendant is entitled to a judgment in its favor.
So ordered.
