Galvin v. Old Colony R. Co.

• Decision Date: 02 January 1895
• Parties: GALVIN v. OLD COLONY R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 533

39 N.E. 186

GALVIN v. OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Bristol.

January 2, 1895

COUNSEL

Cummings & Higginson, for plaintiff.

J.H Benton, Jr., and C.F. Choate, for defendant.

OPINION

LATHROP J.

Taking the most favorable view of the evidence in this case for the plaintiff, we are of opinion that she is not entitled to recover. Her intestate was injured while using a narrow passageway between a railroad track and a cotton platform which was not designed to be used in this way, although it was sometimes so used. There was a safer way, though longer provided. Galvin was told to go on to the pier with O'Brien, and get a barrel of oysters. Instead of following O'Brien, who took the safer way, he chose the shorter way, and then, without looking to see whether the locomotive engine was coming, proceeded along this way. He was familiar with the premises, having worked there a year or more. The place of the accident was a pier, where there were several tracks, and the locomotive engine was going up and down the tracks all day long, and the time of the accident was "just the busy time." There is no evidence in the case to show that it was customary for the engineer to ring the bell or blow the whistle as a warning to the employés on the pier, and they, therefore, had no right to rely upon a warning being given. So far as the evidence goes, it shows that the men were accustomed to look out for themselves. The way used by Galvin was of the same width throughout its length. There was therefore no trap, and the case is thus distinguishable from Ferren v. Railroad Co., 143 Mass. 197, 9 N.E. 608. If it be said that there was need of haste, and that, therefore, Galvin was justified in using the shorter way, the answer is that there is no evidence that there was not time enough to go by the longer and safer way; and, moreover, he was directed to go with O'Brien, who went by the latter way.

It would seem, also, that there is no evidence which would warrant the jury in finding negligence on the part of the engineer. His act in not sounding the whistle or ringing the bell is the only negligence charged. It is, however, to be remembered that Galvin was not walking upon the track, but at the side of it. While the distance between the rail and the platform is stated to be 31/2 feet, there is no evidence as to how much the locomotive engine projected beyond the rail. For aught...