Casista v. Boston & M. R. R.

• Decision Date: 28 July 1899
• Citation: 69 N.H. 649,45 A. 712
• Parties: CASISTA v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

45 A. 712

69 N.H. 649

CASISTA

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsboro.

July 28, 1899.

Action by Antoine Casista against the Boston & Maine Railroad. Demurrer to declaration. Sustained.

Case for negligence. The plaintiff's declaration alleged that it was the defendant's duty to fence its right of way, and that this duty was neglected, whereby the plaintiff, a child of tender years, was enabled to stray upon the track, and was Injured by moving cars.

Doyle & Lucius, for plaintiff.

Charles H. Burns and Frank S. Streeter, for defendant.

PEASLEE, J. At common law, railroads were under no obligation to fence their rights of way. Chapin v. Railroad Co., 39 N. H. 53, 57, and cases cited. The statute provides that "the proprietors of every railroad shall erect and maintain a sufficient fence upon each side of their road." Pub. St. c. 159, § 23. But this statute is for the benefit of the owner or occupant of the adjoining land. It confers no rights upon the general public. Hill v. Railroad Co., 67 N. H. 449. 32 Atl. 776, and cases cited. The fact that the plaintiff was a child does not after the case. "The fact that the trespasser is an infant cannot have the effect to raise a duty where none otherwise exists." Frost v. Railroad Co., 04 N. H. 220, 9 Atl. 790. If landowners do nothing to a trespasser,—if they let him entirely alone,—he will have no cause of action against them for injuries that he may receive. Buch v. Manufacturing Co. (N. H.) 44 Atl. 809. The declaration does not allege a breach of any duty which the defendant owed to the plaintiff. It was not bound to anticipate his trespass, nor to take precautionary measures to prevent It Demurrer sustained. All concurred.