Creeden v. Boston & M.R.R.

• Decision Date: 27 November 1906
• Citation: 79 N.E. 344,193 Mass. 280
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CREEDEN v. BOSTON & M. R. R.

193 Mass. 280

79 N.E. 344

CREEDEN

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Essex

Nov. 27, 1906.

Appeal from Superior Court, Essex County.

Action by Ellen M. Creeden, administratrix of Patrick Creeden, deceased, against the Boston & Maine Railroad. Demurrer to the amended petition was sustained, and defendant had judgment, from which plaintiff appeals. Affirmed.

The amended petition and the demurrer are as follows:

Amended Declaration.

First count. And the plaintiff says that she is the duly appointed administratrix of the estate of Patrick Creeden, late of Newburyport, in said county, deceased; that on or about the 26th day of December, A. D. 1905, the defendants owned, controlled and operated a steam railroad in and through said Newburyport; that on or about said day and for a long time prior thereto the defendant had maintained a station in said Newburyport, at which its trains stopped for the purpose of taking on and letting off persons rightfully upon its trains; that contiguous to and adjoining said station was a bridge which spanned Merrimac street in said Newburyport; that said bridge was constructed without railings, barriers, lights, warnings or safeguards, that it was a narrow bridge, but little wider than the width of the double track which defendant maintained at that place; that as so constructed it was dangerous to any person alighting from a train of defendant at or near said bridge in the darkness and in the nighttime; that said bridge in the condition it was, on or about the date hereinbefore mentioned, was an improper place for the stopping of trains for the purpose of allowing persons rightfully thereon to alight; that on or about said date plaintiff's intestate was a duly appointed and qualified officer of the watch and constable for criminal service in said Newburyport, doing his duty as such, and wearing his uniform; that on or about said date and in the nightime, the defendant, by its servants and agents, stopped one of its trains at or near its station in said Newburyport for the purpose of allowing persons rightfully to board its said train and to alight therefrom, in such a manner and place as to cause the rear of said train to stand upon or beyond the aforesaid bridge of the defendant over said Merrimac street; that plaintiff's intestate, acting as an officer and constable aforesaid, and in the performance of the duty delegated to him under the instructions of a superior officer, and upon information received by him, and upon his belief that criminals were escaping on said train from said Newburyport, and for the purpose of apprehending said criminals in the performance of his duty as said officer and constable, and for the purpose of examining certain persons abroad whom he had reason to suspect of an unlawful design, boarded said train and walked through one or more cars thereon toward the rear of said train and to or beyond the bridge aforesaid; that he found one of said suspected persons in said car, that, accompanied by said suspected person, plaintiff's intestate then alighted and walked away from said train, toward said station upon said bridge; that at the time of the night on the aforesaid date, the bridge, ways, station and vicinity were in deep darkness; that said bridge was so constructed that between the outer rail of the track and the girder of the bridge on the station side of the bridge, and at a distance of about a foot or more from the rail, there was laid a piece of timber running lengthwise with the bridge and extending about two inches perpendicularly above the surface of the bridge beyond aforesaid outer rail; that at several inches back from the edge of this timber a plank or planks were laid at an angle with the surface level of said bridge sloping upward and outward to the girder, said girder being about a foot to two feet high, the inner part of said plank or planks being some two or three inches above the surface of the bridge, while the outer part touched the girder near its top; that said plank or planks formed an inclined plane running the whole length of the bridge adjoining the girder; that said planks and timbers in the manner in which they were constructed on the date aforesaid, would cause a person walking beyond the outer rail to stumble and pitch forward towards and over the girder, if the feet of such person should come in contact with said timber or planks; that said timber or planks could not be seen on the date and at the time aforesaid by a person walking on or near said bridge owing to the darkness of the night; that in walking as aforesaid he fell over the side of the bridge down to the street many feet below, and was killed; and the plaintiff says that during all this time her intestate was in the exercise of due care, that he was rightfully upon said train under an implied invitation from the defendant; that said defendant had accepted as passengers on its said train during the nighttime a person or persons whom plaintiff's intestate had reason to suspect of some unlawful design; that the defendant was negligent in not furnishing suitable railings, barriers, lights, warnings and safeguards at or upon said bridge, and in causing and directing its servants or agents to stop its car or cars on said bridge; that by reason of the negligence of the defendant, plaintiff's intestate came to his death; that he left a widow and minor children, as whose representative and for whose benefit the plaintiff herein brings this action to recover damages for said death.

Second count. And the plaintiff says that she is the duly appointed administratrix of the estate of Patrick Creeden, late of Newburyport, in said county, deceased; that on or about the 26th day of December, A. D. 1905, the defendants owned, controlled and operated a steam railroad in and through said Newburyport; that on or about said day and for a long time prior thereto the defendant had maintained a station in said Newburyport, at which its trains stopped for the purpose of taking on and letting off persons rightfully upon its trains; that contiguous to and adjoining said station was a bridge which spanned Merrimac street in said Newburyport; that said bridge was constructed without railings, barriers, lights, warnings or safeguards; that it was a narrow bridge, but little wider than the width of the double track which defendant maintained at that place; that as so constructed it was dangerous to any person alighting from a train of defendant at or near said bridge in the darkness and in the nighttime; that said bridge in the condition it was on or about the date hereinbefore mentioned was an improper place for the stopping of trains for the purpose of allowing persons rightfully thereon to alight; that on or about said date plaintiff's intestate was a duly appointed and qualified officer of the watch and constable for criminal service in said Newburyport, doing his duty as such, and wearing his uniform; that on or about said date and in the nighttime, the defendant, by its servants and agents, stopped one of its trains at or near its station in said Newburyport for the purpose of allowing persons rightfully to board its said train and to alight therefrom, in such a manner and place as to cause the rear of said train to stand upon or beyond the aforesaid bridge of the defendant over said Merrimac street; that plaintiff's intestate, acting as an officer and constable aforesaid, and in the performance of the duty delegated to him under the instructions of a superior officer, and upon information received by him and upon his belief that criminals were...