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Middlesex.
Indictment, in five counts, under 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 an 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 count was as follows:
"The
jurors for the Commonwealth of Massachusetts, on their oath,
present that the Fitchburg Railroad Company, a corporation
duly and legally established in this Commonwealth, and duly
authorized and empowered to propel engines and cars, by the
power of steam, along, over and upon the railroad hereinafter
described, was on the seventh day of May, in the year of our
Lord one thousand eight hundred and seventy-four, as it still
is, the owner of a certain railroad leading and extending
from Boston; in the county of Suffolk, in this Commonwealth,
to and through the city of Somerville, in this said county of
Middlesex, and further, and was then in full occupation,
possession and use of said railroad, and was a common
carrier, over, along and upon said railroad, of passengers
and merchandise, and that said corporation, being such owner,
and in such possession, use and occupation of said railroad,
did on said seventh day of May, at Somerville aforesaid, by
its servants and agents, they being there to direct it and
being then and there engaged in the business of said
corporation, and while said servants and agents then and
there were legally engaged in the business of said
corporation, run, propel and drive by the power of steam, a
certain locomotive engine over, along and upon said railroad,
and that by reason of the unfitness and gross negligence and
carelessness of said servants and agents, while engaged in
said business as aforesaid, said engine was then and there
run, propelled and driven as aforesaid, rashly and without
watch, care or foresight, and with great, unusual,
unreasonable and improper speed, and that the said engine
then and there was, by reason of such unfitness and gross
negligence and carelessness of said servants while engaged in
the business of said corporation, as aforesaid, driven at,
against and upon the body of one Charles Keniston, of said
Somerville, he, said Keniston, being then and there in the
exercise of due diligence, and not then being in or upon any
car or vehicle of said corporation, and not then being a
passenger of said corporation, and not then being in the
employment of said corporation; and that said engine did then
and there, while being driven as aforesaid by said agents and
servants of said corporation, violently strike Charles
Keniston, and did then and thereby inflict divers wounds,
bruises and injuries in and upon the head, body and limbs of
him said Keniston, of which said bruises, wounds and injuries
said Keniston then and there instantly died. And so the
jurors aforesaid, upon their oath aforesaid, do say that on
said seventh day of May, in the year of our Lord one thousand
eight hundred and seventy-four, by reason of the unfitness
and gross negligence and carelessness of said servants and
agents of said corporation while engaged in its business as
aforesaid, the life of said Charles Keniston, he said
Keniston not then and there being a passenger of said
corporation nor in its employment, and then and there being
in the exercise of due diligence, was lost, in the manner and
form aforesaid, whereby said Fitchburg Railroad Company has
become liable to a fine not exceeding five thousand dollars
nor less than five hundred dollars, to be recovered by
indictment and to be paid to the executor or administrator of
said Charles Keniston, for the use of the widow and children
of said Charles Keniston; and that Eliza Keniston, of said
Somerville, widow of said Charles Keniston, has been duly
appointed, and now is, the administratrix of the goods and
estate of said Charles Keniston, and that said Charles
Keniston had at the said time of his decease two lawfully
begotten children, both of whom are now living. Against the
peace of said Commonwealth, and contrary to the form of the
statute in such case made and provided."
The
second count was as follows:
"And
the jurors aforesaid, for the Commonwealth of Massachusetts
on their oath aforesaid, do further present that the
Fitchburg Railroad Company, a corporation duly and legally
established in this Commonwealth, and duly authorized and
empowered to propel engines and cars, by the power of steam,
along over and upon the railroad hereinafter described, was
on the seventh day of May, in the year of our Lord one
thousand eight hundred and seventy-four, and still is, the
owner of a certain railroad leading and extending from
Boston, in the county of Suffolk, in this Commonwealth, to
and through the city of Somerville, in this said county of
Middlesex, and further, and was then in full occupation,
possession and use of said railroad, and was a common carrier
over, along and upon said railroad, of passengers and
merchandise, and that said railroad, in its line and course
in and through said Somerville, then crossed and intersected,
and now does, a certain public highway, called and commonly
known as Park Street, at the same level with said highway,
and that then and there said Charles Keniston, of said
Somerville, was travelling upon, along and over said highway
at the point whereat said railroad then and there crossed and
intersected the said highway as aforesaid, and was in the
lawful use and occupation of said highway and of said portion
thereof where said railroad and said highway then and there
crossed, and was then and there in the exercise of due
diligence, and that said corporation did then and there, by
its servants and agents, they being thereto directed and
being then and there engaged in the business of said
corporation, run, drive and propel, by the power of steam, a
certain locomotive engine along, over and upon said railroad,
and over, across and upon said highway at said point where
said railroad then and there intersected said highway, and
did, by reason of the unfitness and gross negligence and
carelessness of its said servants and agents while being then
and there engaged in the business of said corporation as
aforesaid, then and there run, propel and drive said engine
rashly, carelessly and negligently, and without watch, care
or foresight, and at a great, unusual and improper speed, and
did then and there, by reason of said unfitness and gross
negligence and carelessness of said servants and agents while
engaged in the business of said corporation as aforesaid,
suddenly drive, run and propel said engine at, against and
upon the body of said Charles Keniston, while the said
Charles Keniston was travelling upon said highway as
aforesaid, he being then and there in the exercise of due
diligence, and not then and there being in or upon any
vehicle of said corporation, and not being then a passenger
of said corporation, and not being then and there in the
employment of said corporation, and that said engine, being
so driven as aforesaid, did, by reason of said unfitness and
gross negligence and carelessness of said servants and
agents, suddenly and violently strike him said Keniston, and
did then and there and thereby inflict divers bruises, wounds
and injuries in and upon the head, body and limbs of him said
Keniston, of which said bruises, wounds and injuries he said
Keniston then and there instantly died. And so the jurors
aforesaid, upon their oath aforesaid, do say that on said
seventh day of May, in the year of our Lord one thousand
eight hundred and seventy-four, by reason of the unfitness
and gross negligence and carelessness of said servants and
agents of said corporation, while engaged in its business as
aforesaid, the life of said Charles Keniston, he said
Keniston not then and there being a passenger of said
corporation, nor in its employment, and then and there being
in the exercise of due diligence, was lost, in the manner and
form aforesaid, whereby said Fitchburg Railroad Company has
become liable to a fine not exceeding five thousand dollars
nor less...
