Allerton v. Boston & M.R. Co.

• Decision Date: 02 March 1888
• Parties: ALLERTON v. BOSTON & M.R. Co.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 241

15 N.E. 621

ALLERTON v. BOSTON & M.R. Co.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1888

COUNSEL C.G. Fall, for plaintiff.

Mrs Lawrence was a passenger. The Pleasant-Street crossing has been made by the defendant a part of its station; and, having accepted this use, to save money at the risk of life, the defendant has incurred and assumed a corresponding liability. The defendant must provide its passengers a safe passage to and from its trains. Brassell v. Railroad Co., 84 N.Y. 241. A person is a passenger from the time he enters the premises of a railroad station, with a bona fide intention of buying his ticket, till he has left the premises of the station of his destination while going directly to the place of taking the train at the first station, and going directly from the place of leaving it at the other. 2 Wood, Ry.Law pp. 1037-1049, § 298. See Johnson v. Railroad Co., 125 Mass. 75, 78; Moreland v. Railroad Co., 141 Mass. 31, 6 N.E. 225; Warren v. Railroad Co., 8 Allen, 227; Com. v. Railroad, 129 Mass. 500 501; McKimble v. Railroad Co., 139 Mass. 542, 2 N.E. 97; Keefe v. Railroad Co., 142 Mass. 251, 7 N.E. 874. Being on the carrier's premises, with a bona fide intention of becoming a passenger, entitles one to the rights of a passenger. Gordon v. Railroad Co., 40 Barb. 546; Allender v. Railroad Co., 37 Iowa, 264; 2 Wood, Ry.Law, p. 1037, § 298. Mrs. Lawrence was not obliged, upon leaving the train, to take the shortest practicable course to her destination. Pleasant street was a grade crossing, with gates. Upon proof that no bell was rung, or whistle sounded, the burden is thrown upon the defendant to prove that Mrs. Lawrence was guilty of gross or willful negligence. This burden rests there whether she was or was not a passenger. Pub.St. c. 112, §§ 162, 213. She was in the exercise of due care. Crossing a track without looking to see if a train is coming, is not conclusive proof of want of care. The circumstances are to be considered. Warren v. Railroad Co., 8 Allen, 227, 231; Railroad Co. v. State, 60 Md. 449; Brassell v. Railroad Co., ubi supra. The defendant was negligent in maintaining so dangerous a grade station. Its agents and servants were grossly negligent. See Armstrong v. Railroad, 66 Barb. 437, 64 N.Y. 635. Even if she might have escaped by turning back, she is not guilty of contributory negligence, if, for the purpose of escaping impending danger, she went for ward. The City of Paris, 9 Wall. 638. See, also, The Western Metropolis, 6 Blatchf. 212; The Ella B., 19 F. 792; Ry. & Corp.Law J. 372.

S. Lincoln and W.I. Badger, for defendant.

This action cannot be maintained, because--First. (a) At the time the plaintiff's intestate was killed, she was not a passenger within the meaning of Pub.St. c. 112, § 212. (b) Not being a passenger, she was not in the exercise of due care. Second. Upon the pleadings it is not open to show that she was killed maliciously, or by such gross and reckless carelessness and misconduct of the defendant or its agents as is in law equivalent to malice. But if such claim were admissible, there is no evidence to support it. At the time the plaintiff's intestate was killed, she had ceased to be a passenger upon the defendant's railroad. The defendant had afforded her an "opportunity, by safe and convenient means, to leave the train and roadway of the corporation," which was all that it was required to do. Com. v. Railroad Co., 129 Mass. 500. Its duty towards the deceased as a passenger was not enlarged, either by any actual invitation of the defendant's servants to cross the tracks, or by any invitation resulting by implication from a peculiar construction or use of its road and machinery. Ormsbee v. Railroad Co., 14 R.I. 102, and cases cited. A passenger upon a railroad is bound to comply with the rules and orders of the company or its agents, as much when going from the cars to a place of safety beyond the railroad track, as when actually on board the train. Warren v. Railroad Co., 8 Allen, 227. Closing the gates was, in effect, an order not to pass, and this order the plaintiff's intestate failed to observe, and, failing to observe it, she was not properly using the defendant's premises, and therefore ceased to be a passenger by her own act. McKimble v. Railroad Co., 139 Mass. 549, 2 N.E. 97; Wheelwright v. Railroad Co., 135 Mass. 230; Bancroft v. Railroad Co., 97 Mass. 275. The case at bar is to be distinguished from those in which a passenger has been misled by some act or omission of a railroad company or its agents, or by the arrangement and use of its premises. Such are Warren v. Railroad Co., supra; Gaynor v. Railroad Co., 100 Mass. 208; Mayo v. Railroad Co., 104 Mass. 138; Chaffee v. Railroad Corp., Id. 108; Wheelock v. Railroad Co., 105 Mass. 203; Craig v. Railroad Co., 118 Mass. 431. The evidence of plaintiff's witnesses, so far from affirmatively proving one case, conclusively shows negligence. Butterfield v. Railroad Co., 10 Allen, 532; Wright v. Railroad Co., 129 Mass. 440; Bancroft v. Railroad Co., 97 Mass. 275; Wheelwright v. Railroad Co., 135 Mass. 225; State v. Railroad Co., 77 Me. 538, 1 Atl.Rep. 673; and other cases cited above. Nothing appears in evidence which would justify her in relying entirely upon the care and prudence of others, or excuse her from the exercise of care on her own part, of ordinary caution, and of the simple use of her senses. Gorton v. Railroad Co., 45 N.Y. 660; Havens v. Same, 41 N.Y. 296; Railroad Co. v. Fears, 53 Ill. 115; and other cases cited above.

OPINION

KNOWLTON J.

The plaintiff's intestate had ceased to be a passenger before the accident which caused her death. She had reached her destination, had alighted from the train, had taken a position upon the sidewalk of the highway, and thence had started to cross the track, along the street, not upon her way to the defendant's station, but to some other place which she had in mind. Was there any evidence at the trial that she was in the exercise of due care? It is well-established law, in this commonwealth and elsewhere that one who starts to cross a railroad track without looking for approaching trains, unless he has a good reason for not looking, is not in the exercise of proper care. And this rule has been repeatedly applied to persons crossing a double-track railroad, who have started immediately after the passage of one train, without looking for the approach of another. Bancroft v. Railroad Corp., 97 Mass. 275; Mayo v. Railroad Co., 104 Mass. 141; Warren v. Railroad Co., 8 Allen, 227; Wheelwright v. Railroad Co., 135 Mass. 225. There is nothing in the case at bar to relieve the plaintiff from the operation of this rule. The gates upon the highway were down, as a warning that the tracks were in use, and that it was not safe to cross. As soon as the train from which the plaintiff's intestate had alighted, passed on, she started to cross, without waiting for the gates to be raised, and without looking to...