Commonwealth v. Fitchburg R. Co.

• Decision Date: 12 April 1879
• Citation: 126 Mass. 472
• Parties: Commonwealth v. Fitchburg Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 472

Commonwealth v. Fitchburg Railroad Company

Supreme Court of Massachusetts

April 12, 1879

Middlesex. Indictment on the Gen. Sts. c. 63, § 98, and the St. of 1871, c. 352, to recover, for the use of the widow and children of Charles Keniston, a fine, by reason of the loss of his life, from being run over on May 7, 1874, by a locomotive engine and train of cars of the defendant, at a place in Somerville where the defendant railroad crosses Park Street, so called, at grade.

The first and second counts of the indictment, upon which alone the case was tried, a nolle prosequi having been entered as to the third count, are given in full in the report of the case at a former stage, 120 Mass. 372; and the material parts of them are stated in the opinion.

After the former decision, and before the jury were empanelled, the defendant filed in the Superior Court two motions to quash the indictment. Pitman, J., overruled the motions. The case was then tried; the jury returned a verdict of guilty; and the defendant alleged exceptions, the substance of which appears in the opinion.

Exceptions sustained.

G. A Somerby & W. S. Stearns, for the defendant.

T. H Sweetser & O. S. Knapp, (C. D. Adams with them,) for the Commonwealth.

Morton, J. Colt & Endicott, JJ., absent.

OPINION

Morton, J.

The first count of the indictment charges the killing of the person named therein, within the city of Somerville, by reason of the unfitness and gross negligence and carelessness of the servants of the defendant while engaged in its business. The negligence alleged is that the servants, who were running an engine, ran it "rashly, and without watch, care or foresight, and with great, unusual, unreasonable and improper speed." The second count varies from the first only in charging that the killing was by a collision at the crossing at grade of a public highway in Somerville called Park Street.

Neither count alleges any negligence of the corporation; neither count alleges as negligence of the servants that they did not ring the bell or sound the whistle as required to do at grade crossings; or that they did not seasonably close the gate at the crossing. Upon these last points, evidence was admitted at the trial, and it was competent upon the issue whether the person killed was using due care; but it was not competent and could not be considered by the jury upon the issue of the gross negligence of the servants of the defendant. The only negligence sufficiently charged is that the servants ran the engine with great, unusual, unreasonable and improper speed. The addition of the words "rashly, and without watch care or foresight" cannot enlarge the allegation so as to make it equivalent to an averment that the servants neglected to ring the bell or sound the whistle. It does...