Chenery v. Fitchburg R. Co.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: HOLMES
• Citation: 160 Mass. 211,35 N.E. 554
• Decision Date: 29 November 1893
• Parties: CHENERY v. FITCHBURG R. CO.

160 Mass. 211
35 N.E. 554

CHENERY
v.
FITCHBURG R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 29, 1893.

Exceptions from superior court, Worcester county; John Hopkins, Judge.

Action by Mary V. Chenery against the Fitchburg Railroad Company. There was judgment for defendant, and plaintiff excepts. Exceptions overruled.

Rice, [160 Mass. 214]King & Rice, for plaintiff.

W.S.B. Hopkins and Frank B. Smith, for defendant.

[160 Mass. 211]HOLMES, J.

This is an action for running down the plaintiff at a point on the defendant's track where it is crossed by a private way along which she was traveling. The plaintiff asked for an instruction to the effect that if people were in the habit of using the crossing, and the defendant had made no objection, the plaintiff was not a trespasser, and the defendant was bound to use reasonable care to protect her. The judge refused this, but instructed the jury in substance that if, taking the whole condition of things into account,-the physical condition of the crossing, the width of it, the extent to which it was traveled, etc.,-a reasonably intelligent and prudent man would have understood that the defendant by implication declared that the crossing was public, and that he as a member of the public might pass over it, the defendant was bound to do what was reasonable and necessary to do in order to protect an ordinarily intelligent and prudent man who was rightfully there. The plaintiff excepted to the refusal to rule as requested, and excepted in a general way at the end of the charge.

The general exception to the charge adds nothing to the [160 Mass. 212]exception to the refusal to rule as requested, except, perhaps, to make explicit an implied exception to rulings inconsistent with the one requested; and it seems doubtful whether the refusal of the plaintiff's request was understood at the time to be more than a refusal to adopt the precise form of words, or to indicate a difference of view upon the criteria of liability. However, there is a difference between the two rules as stated, although no attention was drawn to it.

The ruling asked for lays it down as matter of law that if people are accustomed to cross a railroad track at a certain place, and the company makes no objection, this imports a license from the company, and that such a license imposes a duty to use reasonable care to protect the crossers. But, even if we are to assume the use of the crossing to be with knowledge of the company, it seems a strong thing to say that the very state of facts which, if continued 20 years, would create a right of way, on the presumption that the user was adverse, that is, without a license, (Johanson v. Railroad Co., 153 Mass. 57, 59, 26 N.E. 426,) shall be presumed, up to the very last moment of the 20 years, to have been with license. We are aware that...