Byrnes v. Boston & M.R.r.

• Decision Date: 20 May 1902
• Citation: 63 N.E. 897,181 Mass. 322
• Parties: BYRNES v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 322

63 N.E. 897

BYRNES v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1902

COUNSEL

J. Weston Allen, for plaintiff.

Solomon Lincoln and John Abbott, for defendant.

OPINION

LATHROP J.

The plaintiff, a boy of eight years of age, was injured while attempting to cross the tracks of the defendant's road. The accident took place between 6 and 7 o'clock in the evening of July 16, 1899. At this time the defendant's road crossed at grade, and at their intersection, two highways in Chelsea, called Sixth street and Arlington street. East of the crossing was the passenger station of the defendant, and west of the crossing the land between the interesecting streets was divided by the tracks into two triangular parts. The northerly portion between the tracks and Sixth street was occupied and used by the defendant as a freight yard. The southerly portion between the tracks and Arlington street was occupied as a granite yard. In the freight yard, near the line of the tracks, were two posts,--one a gatepost, near the crossing, and the other a telegraph post, 60 feet from the crossing. The plaintiff with the other boys, for the purpose of making a short cut left Sixth street before reaching the crossing, and entered the freight yard of the defendant, intending to cross the tracks and pass through the granite yard to Arlington street. In crossing the tracks about 18 feet from the gatepost the plaintiff stumbled and fell, and one foot was cut off by a passing train, which he knew nothing of until it struck him. It appeared that there was no fence between the freight yard and the tracks, nor between the freight yard and Sixth street.

The plaintiff contends that it was the duty of the railroad under Pub. St. c. 112, § 115, as amended by St. 1882, c. 162 to have had a fence between its freight yard and its tracks; and that the omission to comply with the statute is evidence of negligence. The object of the statute is expressed to be 'to prevent the entrance of cattle upon the road'; and cases that have arisen under it are all cases of this kind. Rogers v. Railroad Co., 1 Allen, 16; Eames v. Railroad Co., 98 Mass. 560, 96 Am. Dec. 676; Baxter v. Railroad Corp., 102 Mass. 383; Eames v. Railroad Co., 105 Mass. 193; Keliher v. Railroad Co., 107 Mass. 411. But the omission to fence does not render a railroad company liable except as against adjoining owners; and if a horse escapes from the highway onto an unfenced lot, and thence to the railroad, where it is injured, the owner cannot recover unless there was reckless or wanton misconduct on the part of those in charge of the train. Maynard v. Railroad Co., 115 Mass. 458, 15 Am. Rep. 119; McDonnell v. Railroad Corp., 115 Mass. 564; Darling v. Railroad Co., 121 Mass. 118. W...