Merrill v. Eastern R. Co.

• Decision Date: 08 May 1885
• Parties: MERRILL v. EASTERN R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 252

29 N.E. 666

MERRILL

v.EASTERN R. CO.¹

Supreme Judicial Court of Massachusetts, Essex.

May 8, 1885.

Exceptions from superior court, Essex county; MASON, Judge.

Action under Pub.St. c. 112, § 212, by Harriet E. Merrill, administratrix of William K. Merrill, against the Eastern Railroad Company, for the wrongful death of plaintiff's intestate, a passenger on one of defendant's trains at the time he was killed. It appeared from plaintiff's evidence that deceased was a passenger on a train approaching the station of North Beverly from the west; that before the train reached the station it stopped, and the name of the station was called out by some of the employes of the road, whereupon deceased alighted, and was struck by an express train passing in the opposite direction on another track. Frederick A. Prescott, a witness for plaintiff, testified that he was on the same train, but in another car, and that just before the train reached the station it stopped, and the name of the station was called out, and that immediately afterwards the express train passed on the side towards the station. He was then asked: “Did you notice whether anybody left the train or not, or got up?” This question was objected to, and withdrawn, and witness was asked: “Did you notice that anything took place?” Objection was made to this question, on the ground that the witness was not in the same car with the deceased. This was overruled, and the witness' answer was: “I noticed that people went towards the door, and the door was closed after.” Annie Symonds testified to being on the same train as the last-named witness, and to its stopping as before stated; that she was in the rear car, while the deceased, it appeared, was in the smoking-car, and there were several cars between them. She was then asked: “What did you do?” She answered: “I got up and went out on the platform on the forward end of the car, and, as I stepped on the platform, an employe of the road, who wore a badge, and was the same person who had taken my ticket, said, ‘Wait, and I will help you down.’ He went down the steps of the car, and I went down the steps, and I got down to the ground.” This question and answer were admitted, against the objection of the defendant. Mary J. Gibney testified that she was on the train, but did not know the position of the car in which she was, except that there were other cars between her car and the rear, and other cars between her and the engine. The following questions and answers were admitted, over defendant's objection: “Question. Did you hear anything said or anything called before the train stopped? Did you hear any name or place called? Answer. North Beverly. Q. And by whom was it called? Do you know? A. I do not know. Q. In what manner was it called? A. North Beverly. I rose up out of my seat, and got out of the car. Q. Did you rise up before you heard the words, ...