McKimble v. Boston & M. R. R.
| Decision Date | 24 June 1885 |
| Citation | 139 Mass. 542,2 N.E. 97 |
| Parties | Annie McKimble, administratrix, v. Boston and Maine Railroad |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Tort, by the administratrix of the estate of Jeremiah McKimble, for causing his death. The declaration contained two counts. The first count alleged that the intestate was a passenger on the defendant's train, and was killed while leaving the same on January 10, 1883, at Charlestown, when the train stopped, through the defendant's negligence and the gross negligence of its servants. The second count alleged that, at the time the intestate was killed, he was not a passenger, nor in the defendant's employment; that he was in the exercise of due care, and was killed through the negligence of the defendant and the gross negligence of its servants. Answer, a general denial.
Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows:
There was evidence tending to show the following facts: The plaintiff was appointed, on January 23, 1883, administratrix of the estate of Jeremiah McKimble. The intestate took a train from Boston on the defendant's railroad, on January 10, 1883, and was killed after leaving the train at Prison Point, sometimes called Charlestown, on the left-hand side, and while in the act of crossing the inward track to get off the defendant's premises, by a freight car which was moving towards Boston, pushed by a shifting engine. The time of the accident was between daylight and dark, dark enough for lamp-lighting; and at the time it was snowing and blowing hard.
The railroad, after leaving Boston in a northerly direction, and crossing Charles River, crosses Miller's River obliquely by a drawbridge, then Austin Street, which leads from Charlestown to Cambridge, this crossing being nearly at right angles and about a mile from the station at Boston, and then the Fitchburg Railroad by a grade crossing. The main line of the defendant's railroad consists of two parallel tracks, of which outward trains use the easterly and inward trains the westerly. On the westerly side of the main track of the railroad lies a triangular space, bounded by Miller's River, Austin Street, and the main tracks of the road. This area, formerly flats, on the border of Miller's River, is occupied as a freight yard of the defendant, and is filled land. The main tracks which run by the area rest partly upon a wooden structure built on piles over the water, and partly upon filled land. The filling under the main track extends northerly, from a point where a sign marked "500 feet" is erected, to the Fitchburg Railroad crossing and beyond. This area, a freight yard of the defendant, through which the freight engines, cars, and shifters continually run, is covered with side tracks, except a large triangular space, partly paved, in front of a freight-house, used as a milk yard, and entered from Austin Street. This milk yard is separated from the main tracks of the defendant by a side track. A person leaving the outward and easterly track of the main line, by crossing the inward main track and the side track just referred to, could reach a portion of the triangular space last referred to, and from that the milk yard and Austin Street, without crossing any other track of the defendant.
So much of the main tracks as extended over the water for part of the distance, and at the place where the injury occurred, were laid upon ordinary sleepers placed ten inches or more apart. These sleepers rested upon the stringers of the pile structure, and between the sleepers there were open spaces, extending down to the water, large enough for small men to fall through. The structure was not close nor compact. There was no platform on the westerly side of the railroad south of the Fitchburg Railroad crossing, and no provision whatever for passengers on that side, unless the preceding description indicates such provision.
Since the accident, the road-bed has been changed by the substitution throughout of squared timbers for sleepers, and whatever boards or planks lay between the rails have been removed.
On the easterly side of the easterly track was a platform extending from the Miller's River draw to Austin Street, rather longer than an ordinary passenger train.
Over the platform, about opposite the place of the accident, a light was hung in the night by a switchman. At this place, on the platform, is a sign marked "500 feet," indicating a distance of five hundred feet from the Fitchburg Railroad crossing, and another sign, extending out over the platform, which reads, "Trains from Boston stop here." This platform is about six hundred and sixty feet long, and extends from the Miller's River draw to Austin Street. There was another sign somewhere on the premises, which read, "Take the cars from Boston down the platform."
The Fitchburg Railroad crossed the defendant's railroad a few feet above Austin Street, which street is about ninety feet wide; and the distance from the end of the platform to the middle of the crossing of the two railroads is about one hundred and thirty feet. The platform here extends around a building which stands between the tracks of the two railroads, and which contains two rooms, one on the Fitchburg Railroad side, used as a waiting room, and one on the defendant's side, past which the platform runs, used by the defendant, and called by some of the witnesses a waiting-room. The two rooms are separate and distinct. The defendant's room contained at the time a stove, and a dozen of chairs screwed to the floor around the room. It was hardly large enough for a hundred people to stand in. In one corner a cobbler, named James Parks, had his bench, kept a small variety shop, and sold cigars, candy, medicines, blackings, &c. He shovelled snow, swept and sprinkled around the building at night, and worked at his bench; and, if any passenger wanted to know about a train, he told him the proper train to take. One witness testified, that he had marked bundles for him, and that he sold no tickets. There were time-tables of the defendant's trains hung up in the room, and a notice, painted on thick paper, framed and hung up, which read, "No tickets sold here, and no extra charge on the train."
Daniel Breslin, called as a witness by the plaintiff, testified, that he had been in the employ of the defendant since February, 1872; that a part of his duties was taking care of what is termed a station at Prison Point; and that Parks died in July, 1883. On cross-examination, he testified, that he was in the employ of the defendant in January, 1883; that his duties had nothing to do with the room above mentioned except to write reports; that he had a little desk on which he wrote reports; that his duties were connected with the freight and freight cars out on that ground; that they were so in January, 1883; and that all the charge that was had of that room by anybody was not in him, but in Parks.
Persons were accustomed to inquire of Parks about tickets, and, to obviate questions, he got the master mechanic of the defendant to paint a notice, "No tickets sold here, and no extra charge in the cars," and Parks there posted it up. People got on and off the defendant's train at Charlestown, and occasionally on the left-hand side of the...
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