Griswold v. Boston & M.R.r.
| Decision Date | 23 May 1903 |
| Citation | 67 N.E. 354,183 Mass. 434 |
| Parties | GRISWOLD v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thos J. Boynton, for plaintiff.
Richardson Trull & Wier, for defendant.
1. The plaintiff in this case was a girl 19 years old. On October 15, 1900, she was a passenger on a train of the defendant company from Concord to Reformatory Station, and arrived there about half past 5 in the afternoon. It was then growing dark. Instead of going to her home by the highway, she attempted to take a short cut by going over land of the defendant, on which were two tracks, with a path between the two. One of these tracks was a spur track used for cars, and the other was a track running to the roundhouse, where the locomotive engines were kept. While the plaintiff was walking near the fence on the side of the track leading to the roundhouse, the cars had been kicked off onto the side track and the locomotive engine backed slowly down on the track towards the roundhouse, going at the rate of four miles an hour. The plaintiff, according to her testimony, started to cross the track to the beaten path. As she started to cross she looked back, and saw the engine, and thought it was upon the same track that the cars were on. While she was between the rails some one shouted to her, and she looked up and saw the engine backing down on the track which she was crossing. She did not hear either whistle or bell; and in her effort to go over the track she fell, striking on her back upon and across one of the rails of the track which she was attempting to cross, so that her head and body lay outside the rail toward the path she had started for, and her feet and legs were within the rails. She testified that there was time for her to go over the track, but after she fell she was unable to move; and she was struck by the rear truck of the tender, and received the injuries complained of.
Evidence was admitted, against the objection of the defendant, that persons living in the part of the town towards which the plaintiff was going were in the habit of using the railroad track as the route to reach their homes. Assuming that this evidence was admissible, it only changes the status of the plaintiff from that of a trespasser to that of a bare licensee, to whom the defendant owed no duty but that of refraining from willfully or wantonly running her down. We find nothing in the evidence to show that the servants of the defendant did either. So long as the plaintiff was alongside the track, those on the engine had no reason to suppose that she would attempt to cross the track, and when she did make the attempt she could have got safely over but for her fall. See Byrnes v. Boston & Maine Railroad, 181 Mass. 322, 63 N.E. 897, and cases cited.
2. The next contention is that, if the defendant was not in fault in striking the plaintiff, it owed her a moral and a legal duty to release her as soon as it reasonably could, and that for the breach of this duty an action will lie. It appeared that as soon as the plaintiff was injured she screamed, and one witness testified that in his judgment it was from eight to ten minutes from the time he heard the scream until the plaintiff was released. Other witnesses put the time from three to four minutes. There was expert evidence that, if the plaintiff remained unreleased for eight or ten minutes, she would have a greater shock, and the injury would be greater. Two witnesses testified to this, but neither undertook to discriminate between the injury received by the truck of the tender striking her and that caused by the delay, and we should doubt whether a distinction could be made which would even approximate to certainty. When the accident occurred the fireman ran to the station to notify the station master, who telephoned for a doctor. The engineer got down from his engine, and looked at the girl, but did not start up his engine at once, which might not have been a prudent thing for him to do, without some one on the ground to assist the plaintiff and...
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