Conry v. Boston & M.R.R.

• Decision Date: 25 June 1917
• Citation: 227 Mass. 411,116 N.E. 733
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CONRY v. BOSTON & M. R. R.

227 Mass. 411

116 N.E. 733

CONRY

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

June 25, 1917.

Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Action by Margaret F. Conry, administratrix, against the Boston & Maine Railroad. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

McLellan, Carney & Brickley, of Boston, for plaintiff.

Trull & Wier and J. M. O'Donoghue, all of Lowell, for defendant.

PIERCE, J.

The plaintiff's intestate, Annie Cullen, was struck and killed by a passenger train bound from Boston to Lowell, while crossing the defendant's tracks in front of the North Somerville station, about 8 minutes past 3 o'clock in the afternoon of June 4, 1913. She lived on Newburn avenue, Somerville, which ran from the easterly side of the railroad station. On this side and extending across Newburn avenue was a fence, in the center of which an opening with posts about two feet apart made a suitable entrance for pedestrians from Newburn avenue to the railroad premises and a suitable exit from there to the avenue. The station building was on the westerly side of the railroad tracks opposite Newburn avenue. A concrete platform extended along the tracks in front of the station and for a distance of about 100 feet north and south beyond the building. There was a corresponding platform of about the same distance on the easterly side of the tracks. In front of the station building a space 15 feet in width was covered with planking between the rails and between the platform and the rails and extended across the tracks. The tracks were straight for a distance of at least half a mile from the station in both directions. No train going north was due to stop at the station until 3:51 p. m. and none going south until 3:40 p. m. The intestate went to the station to obtain a time-table, intending to take a train later in the day. She stood on the station platform, and as soon as a freight train going south toward Boston passed, she took the child who was with her in her arms and started across the tracks on the planked space. There was evidence that before starting she looked ‘toward Boston and the opposite way,’ that she again looked in both directions when she got between the inbound and outbound tracks, and that the train was not then in sight. There was evidence that smoke or steam from the engine of a freight train then passing under a bridge 170 feet south from the place of the accident, obscured to some degree the view of the bridge under which the train from Boston passed; that the train from Boston as it approached the bridge was going about 25 miles an hour, that at the bridge the speed was 30 to 35 miles an hour and at the place and time of accident had increased to 50 or 60 miles an hour. There was also evidence that no notice was given of the approach of the train by the ringing of a bell or otherwise. The intestate was struck by the engine as she had her foot ready to step upon the platform. At the close of the evidence the defendant moved that a verdict be directed in its favor. This motion was denied and the jury found for the plaintiff.

In the opinion of a majority of the court there was evidence for the jury of the plaintiff's due care. Giaccobe v. Boston Elevated Ry., 215 Mass. 224, 102 N. E. 322;...