302 Mass. 59 | Mass. | 1938
The decedent was struck and killed by a train while she was attempting to cross the tracks, at Chelmsford, at about 9:30 o’clock on a clear, pleasant morning in June, 1934. Her husband, hereinafter referred to as the plaintiff, was the owner of a parcel of land that extended easterly from the Daniel Webster Highway to the Merrimac River. The tracks of the defendant, which were located a short distance from the top of the westerly bank of the river, divided the plaintiff’s land into two parcels. The plaintiff purchased this property in 1920, and since then had lived with the decedent and their children in a cottage situated between the highway and the railroad location. The plaintiff claimed a right of way across the defendant’s location by virtue of a written instrument, dated June 4, 1841, given by one Fletcher, a predecessor in title, to the Nashua and Lowell Railroad Corporation, the defendant’s
The defendant maintained two lines of track which ran in a general northerly and southerly direction, the southbound track being the one farther away from the river. The train in question consisted of a locomotive and three cars, and had begun its trip at White River Junction, Vermont. It was running express, on the southbound track from Nashua to Lowell, at its usual speed of sixty miles an hour along a fourteen-mile stretch of track over which there were no public highway crossings at grade. The accident occurred about midway between Nashua and Lowell. A growth of foliage, five or six feet high, ran roughly parallel to the northbound track, at a distance of about five feet easterly from that track. To the east of this line of foliage, the land descended to the river. The distance between the rails of each track was four feet eight and one half inches, and there was a space of five to six feet between the tracks.
The decedent was forty-three years old and in good health. Two witnesses testified to the happening of the accident. One Duprey, who operated a filling station next to the plaintiff’s property, heard the locomotive whistle, looked up and saw the decedent as “she was just about over the outside rail, just possibly past it.” The locomotive was then twenty-five or thirty feet from her. He saw her take a step and then jump in an effort to clear the locomotive. She was struck and carried ninety feet. There were two blasts of the whistle very close together. The second blast was sounded about the time she was struck. The fireman testified that the train was on a long, left hand curve and was coming to the straightaway when, five or six hundred feet ahead of him, he saw the intestate, four or five feet
We assume, without deciding, that the decedent had the right to cross the tracks at the place of the accident, although the record does not disclose any physical arrangement upon the railroad location indicative of the existence of a crossing. There was testimony that the accident happened near an opening in the rear fence of the plaintiff’s property, but how long this opening had existed before the accident or by whom it was made or whether the defendant authorized or even permitted it is not shown by the record. There was no evidence that the defendant ever maintained any gate or “passway” at the place of the accident. The release given by Fletcher, under which the plaintiff contends the decedent had the right to cross the location, gave the defendant the right to operate its trains over the locus and, necessarily, gave it the exclusive and paramount use of the area while its trains were passing over it. Granger v. Boston & Albany Railroad, 146 Mass. 276, 280. Rigg v. Boston, Revere Beach, & Lynn Railroad, 158 Mass. 309, 312.
The train in question was running along a more or less isolated path, bordering within a few feet of the top of a slope that descended to the river. There was no testimony as to the extent of the use of the railroad location by the plaintiff or his family in connection with his rear land. The evidence shows that the fireman was on the lookout and saw the decedent about as soon as she emerged from the foliage. It was not unreasonable for him to believe that she would see and hear the train. She could have immediately stopped or -changed her direction. She was not hurrying along and, apparently, was not acting under compulsion
The train was not travelling at a rate of speed higher than the rules of the defendant permitted. The tracks were evidently used for the passage of interstate express trains which may be reasonably expected, in the interests of public convenience and necessity, to proceed at a higher rate of speed than trains running on short trips for the accommodation of all or nearly all of the communities, large or small, through which they pass. The reasonableness of the speed, however, must be determined in view of the physical characteristics of the locus in question and with due regard to the number of persons ordinarily to be found either upon or in proximity to the railroad location. We cannot say that the' running of the train at its usual speed at the place described in the record constituted negligence. June v. Boston & Albany Railroad, 153 Mass. 79. Hicks v. New York, New Haven & Hartford Railroad, 164 Mass. 424, 426, 427. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 142, 143.
Exceptions overruled.