McKimble v. Boston & M.R.R.
| Decision Date | 24 June 1885 |
| Citation | 139 Mass. 542,2 N.E. 97 |
| Parties | MCKIMBLE, Adm'x, v. BOSTON & M.R.R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
This was an action of tort, brought by the administratrix of the estate of Jeremiah McKimble, to recover damages for his death, which was caused by his being run over by a train on the defendant's road. At the trial in the lower court the presiding judge directed a verdict for the defendant.Chas. G. Fall, for plaintiff.
Solomon Lincoln, for defendant.
While there was evidence proper to submit to a jury of the negligence of the defendant, and of the gross negligence of its servants or agents, there was no evidence of the exercise of ordinary care by the deceased; and the ruling of the court that the action could not be maintained was correct, if the burden was upon the plaintiff to prove such care. Whether such burden was upon the plaintiff depended upon whether the deceased was a passenger. If he was a passenger, and his life was lost through the negligence of the defendant, or the gross negligence of its servants or agents, it would not be necessary to prove that he was not negligent. Pub.St. c. 112, § 212; Com. v. Boston & L.R. Corp. 134 Mass. 211. If, therefore, there was evidence to be submitted to the jury that the deceased was a passenger when he was injured, the ruling was wrong.
The deceased was upon a regular passenger train from Boston, and the only ground for contending that he was not a passenger upon it was that he left it without surrendering his ticket or paying his fare. He had a ticket which gave him the right to ride as a passenger, and he had no opportunity to surrender it or to pay his fare. It cannot be assumed as matter of law that he was not riding upon the ticket which he held, or that he intended to evade the payment of his fare, or left the car for that purpose. There was evidence tending to show that the deceased left the train after it had stopped at a station where passengers were accustomed and had a right to take and leave the cars. If a passenger, he would continue to be such while rightfully leaving the train and station. It is objected that he had no right to leave the car in the manner in which he did, and that before he was injured he had ceased to be a passenger by leaving the car negligently, and as he had no right to. But it does not appear that he did not so leave it in consequence of the negligence of the defendant. The defendant had made provision for...
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