Carlson v. Boston & M.R.R.

• Decision Date: 11 October 1929
• Citation: 168 N.E. 171,269 Mass. 60
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CARLSON v. BOSTON & M. R. R.

269 Mass. 60

168 N.E. 171

CARLSON

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 11, 1929.

Exceptions from Superior Court, Worcester County; D. F. Dillon, Judge.

Action by Carl R. Carlson, administrator of Mina Carlson, deceased, against the Boston & Maine Railroad. The court directed a verdict for defendant, and plaintiff brings exceptions. Exceptions overruled, and judgment directed to be entered on the verdict.

H. W. Blake and A. T. Bazydlo, both of Gardner, for plaintiff.

C. M. Thayer, of Worcester, for defendant.

CROSBY, J.

This is an action brought under G. L. c. 229, § 3, to recover for the death of the plaintiff's intestate. If it be assumed that at the time of her death she was a passenger of the defendant the plaintiff might recover under G. L. c. 229, § 3, even if she was lacking in due care, providing her death was due to negligence of the defendant. Jones v. Boston & Northern Street Railway, 205 Mass. 108, 90 N. E. 1152;Renaud v. New York, New Haven & Hartford Railroad, 210 Mass. 553, 556, 97 N. E. 98,38 L. R. A. (N. S.) 689;Cotter v. Boston, R. B. & L. R. Co., 237 Mass. 68, 72, 129 N. E. 426;McCarthy v. Boston, Revere Beach & Lynn Railroad, 262 Mass. 56, 58, 159 N. E. 507.

The material facts as shown by the record are as follows: On September 4, 1926, the deceased was a passenger upon a westbound train called the ‘Minute Man’; her destination was Gardner in this commonwealth. She rode in the third car from the rear of the train which consisted of ten cars, the total length of the train being about eight hundred and seventy feet. At the Gardner station, where it remained three or four minutes while several passengers alighted and others boarded the train, the two rear cars stood east of an overhead bridge, which was five hundred and fourteen feet easterly of the station, and the third car from the rear was partly under and partly east of the bridge. After the train started and the rear end of the car in which the deceased was riding neared the station, she came down the steps at the rear end of that car and stepped or fell upon the station platform. She was thrown with such force that her death occurred almost immediately.

At the time she went upon the platform the steps from which she fell or stepped off had moved approximately five hundred and fifty feet from their original stopping place east of the bridge and had passed passengers on the platform, a stand pipe, eight electric light poles thirty-five feet apart, three posts supporting the awning of the station, and a line of trees located by the side of the highway and running parallel with the station, all of which could have been found to be visible from the steps of the car which the deceased descended for the last four hundred feet of their movement before the accident. There was evidence that when she fell or stepped off the train it was moving at a speed of between twenty and twenty-five miles an hour.

[3] There was further evidence that during the time the train stopped at Gardner no trainman was at the space between the second and third cars from the rear, and no announcement was made at that point by a trainman that the train was about to start; that from the rear end of the car in which the deceased was riding the station could not be seen; that ordinarily this train carried a train crew consisting of the conductor, baggage master and two brakemen; that on the day of the accident there were four additional cars and one extra trainman. It is the contention of the plaintiff that it was evidence of negligence on the part of the defendant not to have on the train at least one brakeman for every two cars as required by G. L. c. 160, § 154. The plaintiff argues that if one more brakeman had been on the train when it reached Gardner, it ‘would have been an additional factor of safety which would probably have prevented the death of the plaintiff's intestate.’ It is plain that it is a matter of conjecture whether if the number of brakemen had been provided as required by the statute the deceased would have been prevented from stepping or falling off the train after it had left the station and was proceeding on its way at a speed of at least twenty miles an hour. If the number of brakemen required...