Chenery v. Fitchburg R. Co.
| Decision Date | 29 November 1893 |
| Citation | 160 Mass. 211,35 N.E. 554 |
| Parties | CHENERY v. FITCHBURG R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Rice King & Rice, for plaintiff.
W.S.B Hopkins and Frank B. Smith, for defendant.
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 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 language has been used in other states which seems to sanction the plaintiff's proposition, (Barry v. Railroad Co., 92 N.Y. 289, 292; Swift v. Railroad Co., 123 N.Y. 645, 649, 25 N.E. 378; Taylor v. Canal Co., 113 Pa.St. 162, 175, 8 A. 43;) but we think it would be going quite as far as is possible if the fact of continuous crossing, standing alone, were allowed to be considered by a jury as evidence of a license, (see Sweeny v. Railroad Co., 10 Allen, 368, 374.) Usually, and in the present case, that fact does not stand alone, but there are other circumstances which will aid in determining whether the use is adverse, and therefore wrongful unless with title, or is permissive. All these facts were left to the jury, including the extent to which the crossing had been traveled, and this was as much as the plaintiff could ask.
If the plaintiff was a trespasser, the defendant was not liable. McEachern v. Railroad Co., 150 Mass. 515, 23 N.E 231; Morrissey v. Railroad Co., 126 Mass. 377. The analogy of spring guns and mantraps does not apply. In those cases the defendant does an act which contemplates the presence of the plaintiff on the spot, and which not only produces its effect after he is there, but is intended to do so. His actual intent makes the defendant the last wrongdoer. He intervenes between the wrongful act of the plaintiff and the result complained of as much as if he had assaulted him in person. But when the act complained of is done with a different intent, such as the ordinary running of its trains by a railroad, the defendant has the right to assume that wrongdoers will not be upon its premises, and will be presumed not to have anticipated them until the fact is shown to have been otherwise. Hayes v. Inhabitants, 153 Mass. 514, 27 N.E. 522...
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