Merrill v. Eastern R. Co.

• Decision Date: 07 May 1885
• Citation: Merrill v. Eastern R. Co., 139 Mass. 238, 1 N. E. 548 (Mass. 1885)
• Parties: Octavia B. Merrill, administratrix, v. Eastern Railroad Company
• Court: Supreme Judicial Court of Massachusetts

139 Mass. 238

1 N.E. 548

Octavia B. Merrill, administratrix, v. Eastern Railroad Company

Supreme Judicial Court of Massachusetts

May 7, 1885

Argued November 7, 1884

Essex.

Exceptions overruled.

C. A Benjamin, for the plaintiff.

F. L Evans, for the defendant.

Field C. Allen, & Colburn, JJ., absent. Holmes, J.

OPINION

Holmes, J.

This is an action of tort, under the Pub. Sts. c. 112 § 212, alleging that the plaintiff's intestate was a passenger upon a train of the defendant; and that, by reason of the defendant's negligence and the gross carelessness of its servants, his life was lost. There are three specifications. First, that the train was overloaded and the life of the intestate lost, because, by reason of the insufficiency of its rules, the corporation failed to make proper provision for carrying passengers. Second, that the train was overloaded by the unfitness of the defendant's servants. Third, that the intestate's life was lost by the gross negligence of the defendant's servants "in failing to provide sufficient cars for the reasonable accommodation of passengers, and in the overloading, running, and management of said train."

The plaintiff's intestate had been travelling upon the engine, but got off at East Salisbury, a station where the train stopped, and, after the conductor had called out, "All aboard," and the train had started, ran and got upon the front platform of the front passenger car. The train was crowded, but there was no evidence that it would have been impossible for the deceased to reach the inside of the car, and there was testimony that he could have done so, and that he was asked by the brakeman to get out of the way so that the latter could do his work, but retorted that he had been on this road twenty years, and knew more about railroads than the brakeman did. The deceased stood upon the step of the platform facing inward, and after the train had gone from a quarter to half a mile fell off and was killed. In half a mile the train had reached a speed of thirty miles an hour, and, according to some of the witnesses, it was swaying violently when the deceased fell. The track was straight. The court ruled that the action could not be maintained upon the evidence, and directed a verdict for the defendant.

We are of opinion that the ruling was correct, and that none of the specifications were maintained. If we should assume that the deceased had acquired the rights of a passenger, and that the defendant failed to make proper provision for carrying passengers, or that the train was overloaded by the unfitness of the defendant's servants, still we should have some difficulty in saying that the overloading was the cause of the death, notwithstanding the decision in Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211. For if the place which the deceased took was unfit and dangerous, its unfitness and danger already existed and were manifest before he took it. If there was a crowd on the platform, the deceased saw it. And certainly the argument would be strong that he, rather than the defendant, was...