Morrissey v. Eastern R. Co.

• Citation: 126 Mass. 377
• Parties: Michael J. Morrissey v. Eastern Railroad Company
• Decision Date: 24 March 1879
• Court: United States State Supreme Judicial Court of Massachusetts

126 Mass. 377

Michael J. Morrissey v. Eastern Railroad Company

Supreme Court of Massachusetts

March 24, 1879

Argued November 8, 1878 [Syllabus Material]

Essex. Tort for injuries to the plaintiff, a child four years of age, by being run over by a railroad train of the defendant. Trial in this court, before Gray, C. J., who, after a verdict for the defendant, reported the case for the consideration of the full court, in substance as follows:

The defendant's railroad, at the place of the accident consisting of a single track, after leaving the station at Gloucester, crosses Cedar Street, and, at a point about four hundred feet from the station, enters a cut through a ledge upon a curve. The ledge rises upon both sides of the track and extends a short distance. Upon both sides of the track in the rear of this ledge and beyond it, are houses, in one of which the plaintiff lived with his mother. At a point about one hundred and thirty feet from Cedar Street there is a path across the track made by foot passengers. This was not a public way, highway, nor travelled place, where the defendant was required by statute to maintain warning boards, and it was not contended that the plaintiff or his mother had any private rights in this path.

Testimony was introduced for the plaintiff, tending to show that the passageway described was open to every one to use and that it was so used; that the houses above referred to were not standing there when the railroad was built, and that this passageway was not used before the houses were built; and that the whistle was not blown, nor the bell rung, on the engine, either in its approaching the crossing or at any time.

Richard Morey, a boy of fifteen years, testified that, at the time of the accident, he was playing upon the ledge and became aware of the approach of the train by the puffing of the engine; that he then looked and saw the plaintiff quite alone, kneeling by the side of the track with his head over the rail; that he appeared to be putting something upon the rail and was stooping over it; that the witness ran as fast as he could and pulled him away, but that the engine struck him just as he seized him, and ran over his arm and foot; and that the spot where this occurred was more than a hundred feet distant from Cedar Street, and opposite an opening by the side of the track where there was no fence, and through which led the path before referred to.

Catherine Morrissey, the mother of the plaintiff, testified that she was at home on the day of the accident, and that the plaintiff was there in her care; that he had been in a field near by where she watched him through the window; that he was "all the time running to the track" if she let him out a minute; that she went into the cellar to get some kindling-wood, and the boy was then up-stairs; that she went to saw the wood and the boy was then around her and was talking with her; that the first thing she knew she missed him and heard a scream; that she was not more than a minute cutting wood; that she had great trouble to keep the boy from the trains; that he was in the habit of watching for a chance to run to them, and that she had taken off his shoes and stockings in the afternoon so that he would play in the field and not run over the way to the track, which was rough; that this way was not very rough; and that she heard no whistle or bell or any...