Inness v. Boston, R.B. & L.R. Co.

• Decision Date: 21 May 1897
• Citation: 47 N.E. 193,168 Mass. 433
• Parties: INNESS v. BOSTON, R.B. & L.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 433

47 N.E. 193

INNESS v. BOSTON, R.B. & L.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1897

COUNSEL

E.O. Shepard, for plaintiff.

Lincoln & Badger and Hugh W. Ogden, for defendant.

OPINION

HOLMES J.

This is an action for causing the death of the plaintiff's intestate, a passenger, by the gross negligence of the defendant's servants. Pub.St. c. 112,§ 212. There was evidence that he had just gone up the steps, and reached the platform of a car, when the train of which the car was a part, and which had been delayed by snow, was run into by a later train, and the intestate was thrown off, and killed. The question argued is whether there was any evidence that he was a passenger at the time. The train upon which, according to the evidence mentioned, he was, was bound for Boston, his destination. It was at rest, and, of course, if he had reached the platform on his way into the car, he had got far enough to have the rights of a passenger, so far as his position is concerned. But it is urged that his general practice was to travel by a street railway, and that, on the evidence properly admitted it is as likely that he was crossing the platform on his way to the electric cars as that he intended to go by steam. It also is argued that, as it does not appear that he had a ticket or the money to pay for one, it does not appear that he had the rights of a passenger, whatever his intent.

At the time of the accident, no electric cars were running, because of a snowstorm. There was testimony that the street railway could be seen from the intestate's house, and that less than a quarter of an hour before the accident the intestate looked out in the way he always did, to see if the electric cars were there, and then left in a hurry, saying that he was going to take the train, as there were no cars running. The admission of this statement was excepted to, but was proper. If either his intent or his belief that no electric cars were running was material, his statement at a moment when he had no interest to make evidence was admissible to show the state of his mind, within the established exception to the rule against hearsay. Com. v. Trefethen, 157 Mass. 180, 31 N.E. 961. Clearly, his belief, especially when shown to have been correct, was material, as it would have the taking of the steam cars for its natural consequence, and so would show the probable intent with which he got upon...