Bischoff v. Boston & Maine R.R.
| Decision Date | 15 January 1955 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Marion BISCHOFF v. BOSTON AND MAINE RAILROAD. Marion BISCHOFF, Administratrix, v. BOSTON AND MAINE RAILROAD. |
John F. Moriarty, Springfield, for plaintiffs.
Frederick S. Pillsbury, Springfield, for defendant.
Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.
The plaintiff and her intestate, who was her husband, on the morning of May 26, 1950, were riding in an automobile owned and operated by him. When they came to the Ferry crossing over the defendant's tracks on Ferry Street, a public way leading to their home near the Connecticut River in Holyoke, there was stopped on the crossing a work train of the defendant obstructing their passage, and men were working on both sides of the tracks. After riding in a public reservation for twenty to twenty-five minutes to consume time, they observed the work train still on the crossing. They waited in the reservation entrance ten to twelve minutes more, and without making any inquiry, decided to reach their home by the only other way possible, which was over a private crossing, known as Sinclair's crossing, about 976 feet north of the Ferry Street crossing. In so doing they were struck by a passenger train of the defendant. The plaintiff was hurt, and her husband was killed.
The collision was at 10:25 A.M. While they were waiting in the reservation entrance, the plaintiff 'figured' that it was about 11 o'clock. She wished to get back home because her eight year old son would come on the school bus at 12 o'clock, and she had to prepare his lunch, meet him across the tracks, bring him home, and return with him across the tracks to the bus at 12:45 P.M. The husband intended to do planting in his garden in the afternoon. We have summarized the facts most favorable to the plaintiff which the jury could have found. Her one exception in each case is to the direction of a verdict for the defendant.
The defendant by obstructing a public way 'with cars or engines for more than five minutes at one time' admittedly violated G.L. (Ter.Ed.) c. 160, § 151. The plaintiff contends that she and her husband thereby became invitees on Sinclair's crossing, and on it were owed by the defendant the duty not to injure them negligently. She urges that they had a right of way by necessity, and relies upon Campbell v. Race, 7 Cush. 408, which was an action of trespass against a traveller who found the highway impassable and drove his team over the plaintiff's adjoining land. We think, however, that the plaintiff fails to present a case within the principle for which she contends. A controlling authority is Lynch v. Boston & Maine Railroad, 226 Mass. 522, 116 N.E. 248, L.R.A.1917E, 819, where the plaintiff in wheeling her baby in a carriage along a public way in Peabody reached a railroad crossing which was blocked by a standing freight train. While she tried to pass around the train on the tracks outside the crossing, the train struck her. In rejecting a contention that under Campbell v. Race the plaintiff had a right to cross the tracks outside of the limits of the way, it was said, 226 Mass. at page 527, 116 N.E. at page 250: 'The doctrine of Campbell v. Race is that in case of necessity a traveler on a highway is justified in going on adjoining land when the highway is completely blocked. But the right to go extra viam in case of impassable obstructions is limited to cases of necessity. * * * It is plain that under this rule a finding was not warranted that the plaintiff had a right to go across the tracks beyond the limits of Wallis Street.
The fact that she wanted to get home to her dinner is not enough even if it was true that the train was to stay there for...
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