O'Connor v. Boston & L. R. Corp.

• Decision Date: 10 September 1883
• Citation: 135 Mass. 352
• Parties: William O'Connor v. Boston and Lowell Railroad Corporation
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 352

William O'Connor v. Boston and Lowell Railroad Corporation

Supreme Court of Massachusetts

September 10, 1883

Argued November 10, 1882 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Essex. Tort for personal injuries. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:

About three hundred feet south of the Merrimac River, in the city of Lawrence, is the south canal of the Essex Company, about sixty feet wide, and immediately south of this canal is a private way about seventy feet wide, belonging to the same company, and known by the name of Merrimac Street. This way is considerably used by the public for travel, and connects two streets of the city. A branch of the defendant's railroad crosses the Merrimac River, and then on a curved line crosses the canal by an iron trestle bridge, and passes over this way at a level therewith. The defendant's location over the way was purchased by it of the Essex Company; and, by a contract with the Essex Company, the defendant agreed to keep the same in good condition, and that the Essex Company and its grantees, owners of mill sites on the canals, should have the right to cross the location. At the time of the construction of the railroad, in 1879, the defendant placed planks between its tracks on this way.

The plaintiff's brother, called as a witness by the plaintiff, testified that on August 27, 1880, when he, the witness, was nearly nine years of age, and the plaintiff was four years and eleven months old, he and his brother were returning from North Lawrence, on foot, unaccompanied by any person; that they crossed the river, passed round the end of the canal, and started to cross the railroad track on Merrimac Street; that, as they were crossing the track, the plaintiff, who was walking ahead, turned round to see if the witness was coming, and, while walking backwards, stepped into the space between one of the rails of the defendant's railroad and the planking, left for the flange of the wheel of the locomotive engine; that the plaintiff was unable to withdraw his foot, and the witness attempted to pull it out, but was unable to do so; that he heard the whistle of an approaching train of cars coming from the northward, and, finding that he was unable to extricate his brother, he ran upon the canal bridge and endeavored to signal the train by outcries, and by waving his arms; that the engineer saw him and paid no attention to him; that he then returned to his brother, took hold of him, bent him over and held him down, so that he might lose his foot instead of his life; and that, while he so held him down, the train, which consisted of a locomotive engine and two cars, passed along and severed both of the plaintiff's feet. The length of the train was one hundred and sixty-two feet; and the train was stopped just as the rear car passed the plaintiff.

One Bailey testified, for the plaintiff, that, just before the accident, he was on the street south of the canal, (which he had known as Merrimac Street for twenty-five years,) about four hundred feet from the railroad crossing and going towards it, when his attention was attracted by hearing a boy scream; that he saw the older boy, who was screaming, run to his brother, whose foot was fast in the track, and try to get it out; that the older boy then ran on to the canal bridge, a few feet on, and waved a pail, which he had in his hand, and hollaed; that he then ran back to his brother and bent him over, and the train came along and cut off both his feet. On cross-examination, the witness testified that he heard the whistle of the locomotive engine before he saw the boys; and that, when the train came in sight, the steam brakes were being applied.

The engineer testified, for the defendant, that, having blown the whistle and rung the bell, he was looking upon the track, and first came in sight of the boys as he approached the canal bridge; that he immediately gave several short whistles as a signal of danger; and, the children not leaving the track, he immediately applied the steam brakes, which were in perfect order, and reversed his engine, bringing the train to a stand-still as quick as he could; that the speed of the train, as he approached the bridge over the canal and saw the children, was about seven or eight miles an hour; that the older boy did not leave the younger one at all, and did not run towards the train, nor make any outcry or signal to him.

The planking at the crossing had remained in the same condition it was in when laid, down to the time of the accident. The defendant's witnesses testified that the planking was properly constructed and in good order; no witness testified that the planking was improperly constructed or out of order; but the plaintiff contended that the jury might, from the view which they took and the circumstances of the case, find that it was not properly constructed.

It was not contended that the train was, in any respect, out of order, or improperly manned, or that the proper signals were not given; but the plaintiff contended that the cross-examination of the engineer, a witness for the defendant, showed that he was not possessed of sufficient intelligence or capacity for the duties entrusted to him.

The defendant contended, on the evidence, that an intervening building prevented the place of the accident from being seen from the bridge crossing the Merrimac River at a point more than thirty feet from the southerly end thereof, a distance of about four hundred and seventy-five feet from the place of the accident; and that the trestles of the bridge across the canal also prevented the place of the accident being seen from the locomotive engine, until it had reached a point within a short distance of the canal bridge. The plaintiff denied this, and contended that the place of the accident could be seen at a much greater distance.

Upon the end of the canal bridge nearest the place of the accident, and in full view therefrom, was placed, at the time of the opening of the railroad, a sign adjoining and fronting sad crossing, about four feet long and a foot wide, bearing this inscription: "This is not a public way, and is dangerous." The plaintiff contended that this notice referred to the bridge over the canal, on which were two railroad tracks, but neither sidewalk nor planking, and that it was intended to warn persons from crossing the bridge; and the defendants contended that the sign referred to the way; and this question was argued to the jury. The brother of the plaintiff testified that he saw and read this sign.

It was agreed that there was no gate or flagman at this crossing.

At the close of the evidence, the defendant requested the judge to order a verdict for the defendant. The judge declined so to do.

The defendant asked the judge to instruct the jury as follows: "1. If the plaintiff's walking backwards over the tracks at the place of the accident in any degree contributed to the accident, he was guilty of negligence, and cannot recover. 2. If the plaintiff in any respect was not in the exercise of reasonable care, and such want of reasonable care in any degree contributed to the accident, the plaintiff cannot recover, 3. If permitting the plaintiff to go over the tracks by his parents was, under the circumstances, a want of reasonable care, and such want contributed to the accident, the plaintiff cannot recover. 4. If this crossing was built under the contract with the Essex Company, for their use, the railroad had the right, as against all others, to deny the right of crossing, and the conspicuous posting of a sign that this is not a public way, and is dangerous,' was such denial, and any persons using it after such notice did so at their own risk. 5. The only duty devolving upon the railroad or its servants, under any circumstances, as against the plaintiff, was to exercise reasonable care, and this reasonable care applies to the construction and maintenance of the crossing, (if the judge shall rule, or the jury shall find, that, as against the plaintiff, it was bound to maintain the crossing at all,) to the train and its appointments, to the train men and other servants employed, and to the conduct of such train men and servants; and if no want of such reasonable care on the part of the railroad caused the accident, the plaintiff cannot recover. 6. If the engineer was in the exercise of reasonable care in running the train, and, when he discovered the boys upon the track, he used reasonable endeavors to avoid the accident, and the failure to stop the train caused the accident, the plaintiff cannot recover. 7. If both the plaintiff and the defendant were in the exercise of reasonable care, the plaintiff cannot recover, or if both parties were wanting in reasonable care, the plaintiff cannot recover. 8. The amount of care required of the railroad in using the crossing, to avoid danger, is the same that is required of the person who attempts to use the crossing, to avoid danger. If extreme danger makes extreme care reasonable to the one party, it makes it equally so to the other."

The judge gave the second, third, fifth and seventh requests for instructions.

The judge declined to give the first request for instructions and, on this point, instructed the jury as follows: "In the first place, you will consider whether the plaintiff was rightfully there. If he...