June v. Boston & A.R. Co.

• Decision Date: 09 January 1891
• Parties: JUNE v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 79

26 N.E. 238

JUNE v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 9, 1891

COUNSEL

Hutchins & Wheeler, for plaintiff.

Samuel Hoar, for defendant.

OPINION

HOLMES J.

The plaintiff's intestate was not a passenger. We do not think argument necessary to show that a man walking towards a railroad station with the intention of buying a ticket and taking a train after he gets there is not a passenger before he reaches the station, even if he might be one in the same place if he had begun his journey. Dodge v Steam-Ship Co., 148 Mass. 207, 19 N.E. 373.

There was no evidence of negligence on the part of the corporation or of unfitness or gross negligence of its servants. Pub.St. c. 112, § 212. See Com. v. Railroad, 133 Mass. 383. The place at which the intestate was killed was not a highway, townway, or traveled place, within Pub.St. c. 112, §§ 163-165. No reason for special precautions was shown, except that a plankwalk four feet wide crossed the track, and ended in the door of a private building, with a warning against trespassing hard by. The public was not invited to use this walk as a crossing, and the defendant was not bound to expect them there. Donnelly v. Railroad Co., 151 Mass. 210, 24 N.E. 38. The plaintiff's intestate was not invited there. He was not going to or coming from the building in which the walk ended, but had come from a more distant building along the side of the track, instead of going by the road on which the latter building opened. It would seem that he was not even on the walk, but between the tracks, facing the train which killed him. At most, he was no more than a licensee. As towards him, there was no negligence on the part of the defendant or its servants in not providing a sign-board, gate, or flagman, and no duty to whistle, although in fact the engine was whistling. The defendant had a right, as against him, to run its trains upon its tracks at such speed as it found convenient, and it was for the deceased to take care that he was not hurt by their doing so. There may be cases in which even unintended damage done to a licensee by actively bringing force to bear upon his person will stand differently from merely passively leaving land in a dangerous condition. But something more must be shown than that trains are run in the usual way upon a railroad, where the place does not of itself give warning of his probable presence, and when he is not seen until it is too late. See Metcalfe v. Steam-Ship Co., 147 Mass. 66, 16 N.E. 701; Batchelor v. Fortescue, 11 Q.B.Div. 474. There is a plain difference between this case and those like Byrne v. Railroad Co., 104...