Dix v. Old Colony St. Ry. Co.

• Decision Date: 22 June 1909
• Citation: 202 Mass. 518,89 N.E. 109
• Parties: DIX v. OLD COLONY ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 518

89 N.E. 109

DIX v. OLD COLONY ST. RY. CO.

Supreme Judicial Court of Massachusetts, Norfolk.

June 22, 1909

COUNSEL

Elisha Greenwood, for plaintiff.

A. P French and J. S. Allen, Jr., for defendant.

OPINION

LORING J.

The plaintiff, between 8:30 and 9 o'clcock on a dark night in October, was riding a bicycle on Bussey street in Dedham down grade, toward East Dedham. As he came over the brow of a hill about 600 feet away from Tracy Square he saw a car ahead of him, stopped in the square. Tracy Square is formed by the junction of Bussey and Colburn streets, which run at right angles to each other. At this time he turned onto the defendant's track, which lies on the left-hand side of Bussey street going south, as he was going. He testified that he did this because it was better riding on the stone pavement between the rails than it was outside where the sewer had been recently constructed and the street was rough. He saw the car start. He then rode on, looking ahead, with his machine in control, going from 6 to 8 miles an hour (he testified to 6 on cross-examination and to 7 or 8 on direct), and fell into an unguarded sewer trench 4 or 5 feet wide and running at right angles to the track, across the whole width of the track and further. How much further did not appear. There was no barrier or light across the track at that time. The trench was dug by contractors who were constructing a system of sewers under a contract with the town of Dedham.

The defendant asked the presiding judge to instruct the jury that it 'had a lawful right to operate its cars over the excavation on Bussey street in which it is alleged the plaintiff fell, and to remove guards or barriers, if any, in the way of the passage of such cars. It was under no obligation to the plaintiff to replace such guards or barriers or the signals, if any, thereon,' and that there was no evidence on which a verdict for the plaintiff could be found.

The plaintiff was allowed to go to the jury on the ground that the defendant's servants took away a barrier or barriers put there by somebody else to protect the trench, and negligently failed to put them back.

Exceptions were taken to the refusal to give the rulings asked for, and to the ruling given. The plaintiff had a verdict.

1. The presiding judge was right in refusing to give the first of the two rulings asked for by the defendant. It is true that the defendant was not under the duty of guarding the sewer trench constructed by contractors for the town. Leary v. Boston Elevated Ry., 180 Mass. 203, 62 N.E. 1; Hyde v. Boston, 186 Mass. 115, 71 N.E. 118. Nor was it under the duty of removing and replacing barriers across its tracks to enable its cars to pass. Boston v. Coon, 175 Mass. 283, 284, 285, 56 N.E. 287; Prentiss v. Boston, 112 Mass. 43.

But it does not follow from this that the defendant would not be liable if its servants in charge of one of its cars, on coming to the trench and finding a barrier across its tracks and no one to remove it, removed the barrier and did not put it back, leaving the trench unguarded. In such a case the town or its contractors have not done the duty they owed to the railway company to remove and replace the barriers they put up, when necessary to enable the defendant's cars to pass. For that reason the railway company had to do something which it ought not to have had to do. But if the railway company undertook to do what it ought not to have been forced to do, it is bound to exercise due care, and, if it does not, it is liable for injury caused by its negligence. The situation is not unlike that of a landlord who is not bound to make repairs. He is not liable for not making them, but if he voluntarily undertakes to make them and makes them...