126 Mass. 377 (Mass. 1879), Morrissey v. Eastern R. Co.

Citation:126 Mass. 377
Opinion Judge:Ames, J.
Party Name:Michael J. Morrissey v. Eastern Railroad Company
Attorney:C. A. Benjamin, for the plaintiff. S. Lincoln, Jr., for the defendant, was not called upon.
Judge Panel:Ames, J. Endicott & Lord, JJ., absent.
Case Date:March 24, 1879
Court:Supreme Judicial Court of Massachusetts
 
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Page 377

126 Mass. 377 (Mass. 1879)

Michael J. Morrissey

v.

Eastern Railroad Company

Supreme Court of Massachusetts

March 24, 1879

Argued November 8, 1878

Page 378

[Syllabus Material]

Page 379

Essex. Tort for injuries to the plaintiff, a child four years of age, by being run over by a railroad train of the defendant. Trial in this court, before Gray, C. J., who, after a verdict for the defendant, reported the case for the consideration of the full court, in substance as follows:

The defendant's railroad, at the place of the accident, consisting of a single track, after leaving the station at Gloucester, crosses Cedar Street, and, at a point about four hundred feet from the station, enters a cut through a ledge, upon a curve. The ledge rises upon both sides of the track and extends a short distance. Upon both sides of the track, in the rear of this ledge and beyond it, are houses, in one of which the plaintiff lived with his mother. At a point about one hundred and thirty feet from Cedar Street there is a path across the track made by foot passengers. This was not a public way, highway, nor travelled place, where the defendant was required by statute to maintain warning boards, and it was not contended that the plaintiff or his mother had any private rights in this path.

Testimony was introduced for the plaintiff, tending to show that the passageway described was open to every one to use and that it was so used; that the houses above referred to were not standing there when the railroad was built, and that this passageway was not used before the houses were built; and that the whistle was not blown, nor the bell rung, on the engine, either in its approaching the crossing or at any time.

Richard Morey, a boy of fifteen years, testified that, at the time of the accident, he was playing upon the ledge and became aware of the approach of the train by the puffing of the engine; that he then looked and saw the plaintiff quite alone, kneeling by the side of the track with his head over the rail; that he appeared to be putting something upon the rail and was stooping over it; that the witness ran as fast as he could and pulled him away, but that the engine struck him just as he seized him, and ran over his arm and foot; and that the spot where this occurred was more than a hundred feet distant from Cedar Street, and opposite an opening by the side of the track where there...

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