Commonwealth v. Boston and Lowell Railroad Corp.

• Decision Date: 09 December 1878
• Citation: 126 Mass. 61
• Parties: Commonwealth v. Boston and Lowell Railroad Corporation
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 61

Commonwealth v. Boston and Lowell Railroad Corporation

Supreme Court of Massachusetts

December 9, 1878

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Essex. Indictment on the St. of 1874, c. 372, § 163, alleging, in separate counts, that on August 29, 1877, Joseph Swasey, Lydia A. Swasey, Wilbur B. Swasey and Rachel B. Gifford, not being passengers, while in the exercise of due diligence, were killed by the defendant corporation, through the gross negligence and carelessness of its servants and agents, while engaged in its business, upon the pier of the Philadelphia and Reading Coal and Iron Company, at Salem. At the trial in the Superior Court, before Bacon, J., the following facts appeared:

The pier where the accident happened was not within the location of any railroad corporation, but the tracks were laid by the Eastern Railroad Company, under a license from the Philadelphia and Reading Coal and Iron Company. The pier extends from Derby Street, southerly into the harbor of Salem, about two thousand feet, of which about thirteen hundred feet, being the part towards Derby Street, is built upon piles, and about seven hundred feet in length of the southern end is solid, being built of stones and earth. The width of the part on piles is twenty-six feet, and the width of the filled part is one hundred and three feet. About two hundred feet from Derby Street, on the pier, is a gate, which is in two parts and opens against a water box on the east side of the pier, and against the rail on the western side; the eastern half of the gate is eleven feet three inches long. There are two tracks from Derby Street upon the pier: the eastern track has the rails even with the planking of the wharf, and the rails on the western track are laid upon the surface of the planking. The width of the pier. inside of the timbers on the side of it, is twenty-three feet five inches; on the eastern side of the pier is a box that covers a pipe that carries water from Derby Street, down to the head of the pier; this box is fourteen and one half inches wide, and one foot deep, and the top of it, at the gate, is three feet seven inches above the planking. The east rail on the east track is three feet and one inch from the timber under the box on the eastern side of the wharf. The width of the tracks is four feet eight and a half inches, and the distance between the two tracks seven feet, and, when there is a train of cars on each track, the distance between the two trains is about three feet. The distance from the side of the car to the water box is six and one half inches, and, at the gate, five and one quarter inches. There was a nut about three inches from the bottom of the car, on the side of the car that caused the accident, that extended out from the side of the car an inch and a half, and a staple about a foot long extended out from under the side of the car, from the bottom of the car, about two inches and a half from the side of the car. The car is nine feet seven inches wide. From the bottom of the car body to the planking the distance is three feet five inches, and from the lower step sixteen and one half inches to the planking.

On August 29, 1877, the steamer Plymouth Rock, for which an excursion had been arranged by her agent, sailed from the pier to the Isles of Shoals in the forenoon and returned to the pier at about seven o'clock in the evening of the same day. Tickets for the excursion were sold by the ticket-masters of the defendant at Lowell and Lawrence, and a special train was run which united cars from Lowell and Lawrence, and the same were taken in the morning, by the persons in charge of the train, upon the pier, and the passengers discharged. The engine and cars were manned by servants of the defendant corporation.

The Plymouth Rock took on the excursion from the head of the pier, in the morning, about twenty-five hundred passengers, and returned with the same number in the evening. There were only about five hundred and twenty of the passengers on the steamer that were passengers in the train, the rest of the passengers being from Salem and vicinity. The train that went to the pier to take the Lowell and Lawrence passengers consisted of twelve cars, and arrived at the pier soon after eight o'clock in the evening.

The government offered evidence tending to prove, and it was admitted to be true, that the conductors of the train, and such other persons as had charge and control of it, were the agents and servants of the defendant, engaged at the time in its business; and that this train was then engaged in the business of carrying passengers for hire, and the profits of such carrying were for the benefit of the defendant, and were received by it, although it received no additional recompense for the moving of the train on to the pier.

When the train stopped upon the pier in the evening, the engine and five cars and a part of the sixth car had passed the gate, and, when it stopped, Joseph Swasey was found on the east rail of the east track under the rear truck of the fifth car, dead, a few feet down the pier from the gate, and Rachel B. Gifford, Lydia A. Swasey and Wilbur B. Swasey were found at the gate and a few feet from the northern end of it. Mrs. Swasey was dead, and Wilbur B. Swasey and Rachel B. Gifford were still living. Rachel B. Gifford died the same night, and Wilbur B. Swasey died the next morning. The physicians, who were called to examine them soon after the accident, testified that these persons were all injured in the same manner, and that the injuries were such as would be caused by the rolling of their bodies between the car and the water box, and that the injuries were such as must cause death.

There was evidence tending to prove that this train of cars came upon the pier at about eight o'clock, at a speed of six miles an hour, without any light upon the engine which could be seen by the people in front of it; that the night was so dark that the train could not be seen by a person who was looking intently for it, and who, being upon the pier, was watching to see which track it was coming upon, until it was within fifteen feet of him; that no whistle was blown at any place at which the train could have been seen from the pier, in the day-time; that no bell was rung, and no lights were displayed upon or in the vicinity of the train, and no warning given in any manner of its approach. The defendant put in evidence contradicting the testimony in behalf of the Commonwealth on these points.

There was also evidence tending to prove that, in addition to the passengers arriving by the steamboat, a large number of persons came down upon the pier to see her arrive or to meet their friends; that during the whole time between the arrival of the steamer and the occurrence of the accident, there were large crowds of people upon the pier, and especially that the part of the pier between the solid part and the gate was so crowded with people as to impede locomotion; that a large number of those who were waiting for the train, in which to go to Lawrence and Lowell, were standing upon the pier; and that the switches upon the pier also interfered with the travel of passengers.

Joseph Swasey, Lydia A., his wife, and Rachel B. Gifford, a sister of Lydia A., went upon the excursion in the Plymouth Rock, lived in Salem, and were not passengers in the cars. They landed from the steamer Plymouth Rock among the last that landed, not more than two or three hundred landing after them. There was evidence that it took the passengers about an hour to get off the steamboat.

One witness testified that he saw Joseph Swasey, his wife and wife's sister, at the head of the...