Miles v. Boston, R.B.&L.R. Co.

• Decision Date: 07 January 1931
• Citation: 274 Mass. 87,174 N.E. 200
• Parties: MILES v. BOSTON, R. B. & L. R. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 87

174 N.E. 200

MILES

v.BOSTON, R. B. & L. R. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1931.

Exceptions from Superior Court, Suffolk County; A. R. Weed, Judge.

Action by Ruth Miles, p. p. a., and by Walter H. Miles, against the Boston, Revere Beach & Lynn Railroad Company. Verdict for each plaintiff, and defendant brings exceptions.

Exceptions overruled.

Daniel L. Smith, of Boston, for plaintiffs.

L. Wheeler, Jr., of Worcester, for defendant.

CARROLL, J.

The first of these cases is an action of tort by Ruth Miles, eighteen years of age, herein called the plaintiff, who was injured by reason of falling from or on a foot bridge erected by the defendant over its tracks. The second action is by the father or Ruth to recover for medical expenses furnished to her. The original declaration alleged that while the plaintiff was walking on a flight of stairs ‘which spanned the defendant's railway track on Short Street, East Boston,’ she was injured by reason of the defendant's negligence ‘in the management and control of said stairs.’ The amended declaration alleged that the defendant built the bridge, maintained it, invited and permitted the public and the plaintiff to travel on it, and was required to keep it in repair; that the plaintiff travelling thereon was injured because of the improper construction and want of repair. It does not appear that any question of pleading was involved. There was a verdict for each of the plaintiffs.

The plaintiff testified that on the day she was injured she lived on Short Street near one end of the foot bridge; that she was going down the stairs, ‘holding on to the rail at her right’; that as she was on ‘the lowest wooden step above the two concrete steps, * * * the bannister swung out and she went to go with it, then righted herself and fell forward.’ Photographs of the bridge and of a portion of the house where the plaintiff lived were in evidence. There was further evidence for the plaintiff that ‘the part of the bridge that swung out was at the lowest post’; that the railing ‘leading down to the post on the bridge was in a very shaky condition; that the lower post wasn't firm, it was very shaky, it moved backward and forward, it wasn't solid’; that ‘if you had your hand on the rail the post would move 4 or 5 inches'; that the post ‘was loose and wobbly at the bottom and for the last two months was rotted away’; that ‘prior to the time of the accident * * * [the witness] noticed that every time you go down, as soon as you hit the top of the bottom post if would just sway out about a foot for the last two months, and as soon as you left it go it would spring right back again in position.’

It appeared that in 1914 a petition was brought before the proper authorities requesting a hearing on the erection of a bridge for foot travel over the defendant's tracks on Short Street. A hearing was had but no action was taken. A release from one Nelson and Louis C. Westlake, ‘Westlake being a former owner of the premises where plaintiff lived,’ to the defendant ‘relative to the erection of the foot bridge’ was in evidence, also warranty deeds from ‘Louis C. Westlake to the predecessor in title of plaintiff's mother and from said predecessor in title to plaintiff's mother covering the latter's lot on Short Street.’

The bridge was built by the defendant in 1914. It was agreed that in 1912 a decree was entered discontinuing the private way known as Short Street from Cowper Street to the southeasterly line of the railroad, and in substitution a new way in extension of Cowper Street was laid out. A conveyance from Nelson and Westlake dated February 5, 1914, was in evidence. It recited that Westlake, lake, Nelson and the defendant were the sole abutters upon and owners of a certain private way, describing it; that said private way was the portion of Short Street ‘not discontinued by decree of the Superior Court’ of March 1, 1912; that Nelson and Westlake desired for the benefit of themselves, their heirs and assigns and ‘of such other persons as said Railroad may permit or allow to use the same’ that ‘said Railroad should construct an elevated foot-bridge’ across the railroad; that Nelson and Westlake hereby convey to the railroad company ‘the right to use and occupy any and such portion of that part of the private way above described which lies northeasterly of the middle line of said private way, as may by said Railroad be deemed necessary or convenient for the construction of steps, approaches and supports of an elevated foot-bridge extending * * * over and across the tracks of said Railroad.’ The portion of the way over which the steps, approaches and supports may be placed is described. The conveyance contains this clause: ‘The grant herein contained is upon the express condition that’ said bridge ...