Anternoitz v. New York, N.H.&H.R. Co.
| Decision Date | 03 January 1907 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ANTERNOITZ v. NEW YORK, N. H. & H. R. CO. (two cases). |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge.
Two actions, one by one Anternoitz, Jr., the other by one Anternoitz, Sr., against the New York, New Haven & Hartford Railroad Company. A verdict was ordered for defendant, and plaintiffs excepted. Exceptions overruled.
Whipple, Sears & Ogden and Edwin M. Brooks, for plaintiffs.
Choate, Hall & Stewart, for defendant.
A double track of the defendant runs from the main line near Swett street, in a cut under Fifth Street, Gold Street, and Fourth Street Bridges in South Boston. On May 29, 1902, a freight train of box cars was on its way from Swett street to the freight terminal over these tracks. The engine had passed under Fifth Street Bridge, and was stopped by a signal on Fourth Street Bridge. There are stone retaining walls on each side of the cut at this point. After the train stopped, the plaintiff in the first case, who will be spoken of hereafter as the plaintiff, and two other boys, stepped from the top of the retaining wall on to the top of one of the box cars, a distance of 15 to 18 inches. Apparently the car in question was the third back from the engine. The boys sat down on the top of the car, and stepped off on to the wall and back once or twice. After some 12 minutes the train started; the boys thereupon got up, and in place of stepping directly off the side of the car on to the wall, went to the rear of the car apparently to get a longer ride. One boy had stepped on to the fourth car when the plaintiff, who was standing ‘right on the very edge,’ to use his own words, just as the train ‘began to jerk more and more, as a train will when it starts,’ lost his balance, fell between the two cars and suffered the injuries here complained of. This plaintiff was a boy 8 years and 5 months old at the time. He was playing with his companions on the car at the time, and it is admitted that he was a trespasser. He had often played on and about the cars before, and he knew that he was not wanted there. It also appeared that he was entirely familiar with the signals at Fourth Street Bridge for stopping trains and allowing them to go on.
The only duty owed to this plaintiff was (1) not willfully to injure him, and (2) not to act with a wanton disregard for his safety. No contention has been made that the defendant committed a willful...
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