Doherty v. New York, New Haven, and Hartford Railroad Co.

• Decision Date: 04 January 1918
• Parties: WILLIAM DOHERTY v. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 135

WILLIAM DOHERTY v. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1918

December 4, 1917.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.

Negligence Railroad, Trespasser or licensee.

In an action against a railroad corporation for personal injuries sustained from being run into by a train of the defendant operated by electricity on a local branch line leading to the seashore, when the plaintiff was crossing or had crossed the parallel tracks of the defendant and was on or very near the track on which the train that struck him was running, where the defendant's engineer in charge of the train testified that he had a clear view of several hundred feet and that he perceived the plaintiff crossing the tracks, and where there was other testimony that the train when a hundred and fifty or a hundred and sixty yards away slowed down and thereafter greatly increased its speed, it was held that there was evidence of negligence on the part of the defendant's engineer, but that there was no evidence of such misconduct wilful, wanton, reckless or intentional as would make the defendant liable for the plaintiff's injuries if be was a trespasser or a mere licensee.

In the case described above there was evidence, that the plaintiff was about to take a train to return home from the beach and that he had been waiting in an open station or shed, when he saw the train that he wished to take approaching on the farther from the station of the two tracks, that the space between the station and the first track was filled in to the top of the rails, that the space in front of the station between the rails of the first track and the adjoining space between the two tracks also were filled in to the top of the rails, but that the space between the rails of the second track was not filled in and outside the rails of that track there was no filling and the ends of the sleepers were exposed, that beyond the ends of the sleepers there was a slight depression or gutter or path, beyond which was a riprap wall above the beach to protect the station and the tracks from the action of the sea, that when taking the train on the farther track the majority of persons got on the train from the station side but that persons also got in on both sides, that the plaintiff when he saw his train coming stepped from the platform of the station and crossed the first track and the space between the tracks and entered the space between the rails of the farther track and as he did so, saw that the train was close to him and jumped but was struck by the train. The plaintiff testified that "There was no crowd there or anything to force me to go over to that side to take the train, but I wanted to get on the right hand side and get a train. I went over there voluntarily and of my own accord." Held, that the plaintiff at the time of his injury was not a passenger and was a trespasser or at most a mere licensee to whom the defendant owed no duty other than to refrain from wilfully, recklessly or wantonly exposing him to danger.

In the case above described it was said that the evidence of the use by persons of the outer space in getting upon trains on the farther track merely tended to show that the defendant had tolerated such a practice without taking measures to prevent it, and did not tend to show an invitation from the defendant to use that space.

TORT for personal injuries sustained on September 5, 1915, near the Stony Beach station on the Nantasket branch of the defendant's railroad from being run into negligently by a train of the defendant when the plaintiff was alleged to have been a passenger of the defendant. Writ dated October 11, 1915.

The defendant's answer contained a general denial and an allegation that the plaintiff was guilty of negligence which contributed to his alleged injury.

In the Superior Court the case was tried before Brown, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for it. The judge refused to do this. The defendant then asked the judge to make the following rulings:

"1. Upon all the evidence the plaintiff is not entitled to recover. "2. Upon all the evidence the plaintiff was not in the exercise of due care.

"3. At the time of the accident the plaintiff was not a passenger. "5. When the plaintiff stepped from the gravel fill between the two tracks on to the exposed sleepers or ties between the rails of the Pemberton bound track, he became a trespasser, or at most a mere licensee, and this was his status at the time of the accident.

The judge refused to make any of these rulings and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $600. The defendant alleged exceptions.

Joseph Wentworth, for the defendant. C.J. Muldoon, Jr., (J. J. O'Hare with him,) for the plaintiff.

PIERCE, J. On September 5, 1915, while crossing, or immediately upon leaving, the tracks of the electric railroad of the defendant the plaintiff was struck by and received physical injury from contact with the right hand running board or step of the first car of an electric train running from Nantasket Beach to Pemberton. The evidence would not warrant a ruling that the defendant had affirmatively proved that the plaintiff was not in the exercise of due care. Patrick v. Deziel, 223 Mass. 505 , 508. Nye v. Louis K. Liggett Co. 224 Mass. 401 , 404. Regan v. Boston & Maine Railroad, 224 Mass. 418 . Murphy v. Worcester Consolidated Street Railway, 225 Mass. 264 . Winslow v. New England Co-operative Society, 225 Mass. 576 . Creedon v Galvin, 226 Mass. 140 . French v. Mooar, 226...