McCarty v. Fitchburg R. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: C. ALLEN, J.
• Citation: McCarty v. Fitchburg R. Co., 154 Mass. 17, 27 N.E. 773 (Mass. 1891)
• Decision Date: 20 May 1891
• Parties: MCCARTY v. FITCHBURG R. CO.

154 Mass. 17

27 N.E. 773

MCCARTY v. FITCHBURG R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1891

COUNSEL

Arthur H. Russell and F.C. Manchester, for plaintiff.

Geo. A Torrey, for defendant.

OPINION

C ALLEN, J.

The plaintiff complains of the ruling that there was not sufficient evidence to support a verdict in his favor, and it is incumbent on him to make it appear to us that there was some evidence which would have warranted such a verdict. If it be assumed that the defendant, with its engine or cars ran over the plaintiff, we can find nothing in the bill of exceptions to show any gross or reckless carelessness on its part, or the breach of any duty which the defendant owed to the plaintiff. The plaintiff was alone upon the railroad track. Apparently he had escaped from immediate supervision, and walked down Jenner street to Front street, and then, at some point which there was no evidence to fix, had crossed Front street, and passed upon the railroad track. It is now urged that the defendant ought to have had a fence between Front street and the railroad track, which would have kept the plaintiff off.

The requirement of Pub.St. c. 112, § 115, in relation to building fences, does not include places where the convenient use of the road would be thereby obstructed. There was nothing to show that the requirement to fence the track included such place or places as would have cut off the plaintiff's approach and entry upon it. One of the plaintiff's witnesses testified that freight was unloaded from the cars onto teams on Front street, between Mason street and the end of the freighthouse, which was a distance of 226 feet; and another of his witnesses testified that the place where the boy was injured was just opposite the foot of Mason street where it joins Front street. It would thus appear that the place where the plaintiff received his injury must have been very near, if not exactly upon, the place where it was customary to unload freight from the cars onto teams on. Front street. Certainly there is nothing in this testimony to show, affirmatively, that a fence at the place of the injury would not have obstructed the convenient use of the railroad in loading and unloading cars.

But the plaintiff relies on the fact that the jury took a view of the premises, and he urges upon us that, from what was seen at the view, the jury might have found that the defendant ought to have had such a fence there. Now this, so far as the argument is addressed to us, is a mere conjecture. No plan was shown to us, and there was nothing to show that the convenient use of the railroad would have...