Johanson v. Boston & M.R. Co.

• Decision Date: 09 January 1891
• Parties: JOHANSON v. BOSTON & M.R. CO., (two cases.) FLEMING v. SAME, (two cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 57

26 N.E. 426

JOHANSON

v.BOSTON & M.R. CO., (two cases.)

FLEMING

v.SAME, (two cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1891.

Exceptions from superior court, Suffolk county.

C.G. Fall and G.D. Burrage, for plaintiffs.

S. Lincoln and W.I. Badger, for defendant.

HOLMES, J.

These were actions brought for causing the death of the plaintiffs' children, respectively. Two of them were brought by the plaintiffs on their own behalf for loss of the services of the deceased, but, it being admitted that the children were killed instantly, the court below ruled that the actions could not be maintained, and the exceptions to this ruling are waived. The other two actions were brought by the plaintiffs as administrators of their sons. At the close of the plaintiffs' evidence, the court ruled that these actions also could not be maintained, and the plaintiffs excepted.

The accident took place at a crossing of the railroad track by Adams street. The first question raised is whether the so-called “street” was a “highway,” “townway,” or “traveled place,” within Pub.St. c. 112, §§ 163-165, so as to make the defendant liable to an action under section 213 if it failed to give the warnings required.

We are of opinion that there was evidence for the jury that the crossing was a highway by prescription. There was testimony that there was planking between the tracks; that for more than 20 years the crossing had been in the same condition, and had been open to the public as it is now; and that it had been used continuously by the public for that time just as it is now, that is, as we understand it, in the same way and to the same extent. Evidence also was offered and rejected-in view of the foregoing testimony, we do not quite see why-that the use by the public for a long time before the accident had averaged from 3,000 to 5,000 travelers a day. The jury would have been warranted in finding that the use of the crossing was adverse. Weld v. Brooks, (not yet officially published,) 25 N.E.Rep. 719; Railroad Co. v. Page, 131 Mass. 391;White v. Chapin, 12 Allen, 516, 519.

Next we cannot say that there was no evidence, slight as the evidence was, that the defendant failed to ring its bell, or sound its whistle. One witness testified that he heard no noise made by the engine before the children were struck; another that he heard three sharp whistles just as the boys were struck, but heard no whistle before those. This went further than the testimony in Tully v. Railroad Co., 134 Mass. 499, 502, that the witness did not remember whether he heard a whistle or not. The witnesses said that they remembered that they did not hear it. Railway Co. v. Slattery, L.R. 3 App.Cas. 1155, 1164, 1165. There was evidence that there were no gates and no sign-boards at the crossing; also that the train went by at the rate of 40 miles an hour. If there was no bell or...