Cooke v. Boston & Lowell Railroad Corp.

• Decision Date: 27 June 1882
• Citation: 133 Mass. 185
• Parties: Charles H. Cooke v. Boston and Lowell Railroad Corporation
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 185

Charles H. Cooke v. Boston and Lowell Railroad Corporation

Supreme Court of Massachusetts

June 27, 1882

Middlesex. Tort for personal injuries occasioned to the plaintiff, on May 8, 1880, bye the defective construction of a bridge built and maintained by the defendant corporation in Winchester. Answer, a general denial. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon agreed facts, in substance as follows:

At the time of the accident the plaintiff, who was accustomed to the management of horses, and to driving horses in all kinds of vehicles, was driving an omnibus drawn by two horses along the north side of Cross Street, a highway in Winchester about half past one o'clock in the morning of the day above named, it being dark at the time. He did not see the bridge in question, which extends over and spans Cross Street, until he reached it. He then leaned over on his seat on his right side, when his left shoulder came in contact with a large joist, which was one of the supports of the planking of the bridge, and was nine feet and two inches above the road, and was distant about eight feet from the end of the bridge; and he received the injuries complained of. His horses, which were walking at the time, stopped; and he was using due care.

There was a light in the front part of the omnibus, under the foot rest, but it did not disclose the bridge to the plaintiff. He had never before driven an omnibus on Cross Street, but had driven over the street and under the bridge three or four times in a buggy. The omnibus was eight feet and nine inches high.

Cross Street has been used by the public for travel for more than two hundred years. Under the bridge, and for a short distance on each side, Cross Street has two paths or ways wrought for carriage travel; that on the south side being about six inches lower than the one on the north side, thus rendering the bridge higher above the south driveway than the north driveway, and thus allowing more space for vehicles to pass under the bridge on the south driveway than on the north driveway. The two ways thus constructed and maintained are separated from each other by the stone supports of the bridge, and vehicles cannot pass from one to the other under the bridge. The defendant was incorporated by the St. of 1830, c. 4.

These ways were so constructed and graded by the defendant when the railroad was built, in 1832, and have been kept substantially the same ever since. The grade of the railroad has never been changed at that place. The location of the railroad is there six rods in width, the bridge being in the centre of the location. The bridge has been maintained by the railroad corporation as a part of its railroad. On May 19, 1880, the plaintiff gave to the defendant a written notice of the time place and cause of the accident, in accordance with the statute.

If upon these facts, the plaintiff was entitled to recover, judgment was to be entered for him in the sum of $ 500; otherwise, for the defendant.

Judgment for the plaintiff affirmed.

T. H. Sweetser & G. A. A. Pevey, for the defendant.

J. W. Johnson, (E. F. Johnson with him,) for the plaintiff.

OPINION

C. Allen, J.

It is by implication conceded by the defendant that, at the time of the injury received by the plaintiff, the highway at the crossing was not safe and convenient; and the defence rests upon the ground that the town, and not the railroad company was bound to keep the highway in a safe condition. It was contended that, under § 11 of the defendant's charter, St. 1830, c. 4, it was for the selectmen of the town to say whether or not the manner of constructing the railroad at that point was satisfactory to them, and, if not, to make it so, and to recover the cost of so doing from the railroad company; and that the utmost that the railroad company was required to do by said section was to construct its road in a reasonable and proper way,...