Murphy v. Avery Chem. Co.
| Decision Date | 26 November 1921 |
| Citation | 133 N.E. 92,240 Mass. 150 |
| Parties | MURPHY v. AVERY CHEMICAL CO. SAME v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge.
Two actions by Dennis J. Murphy, administrator, one against the Avery Chemical Company, and the other against the Boston & Maine Railroad, to recover damages for the conscious suffering and death of plaintiff's intestate. Verdict directed for defendant in each case at the close of the evidence, and plaintiff brings exceptions. Exceptions overruled.
Plaintiff's intestate was injured while crossing the tracks of the Boston & Maine Railroad at a place where plaintiff contends a way leading to the premises of the Avery Chemical Company crossed the tracks of such railroad, and as a result of the injuries sustained subsequently died.James T. Connolly and Arthur v. Sullivan, both of Boston, for plaintiff.
Trull, Wier & O'Donoghue, of Lowell, for defendant Boston & M. R. R.
John M. Maloney and Francis G. Hayes, both of Boston, for defendant Avery Chemical Co.
These two actions of tort for the death and conscious suffering of Fauntley M. McKnight were tried together in the superior court. A verdict for each of the defendants was directed.
The plaintiff's intestate, while driving an automobile at a place where a way leading to the premises of the Avery Chemical Companycrossed the main and spur track of the Boston & Maine Railroad, was struck by one of its trains and received injuries from which he died. He had delivered six kegs of nails at the plant of the Avery Chemical Company and then started to leave the premises by the same road he had entered. There was evidence that this road led from the public highway, passed over the land of a third person, and then across the railroad location to the premises of the Avery Chemical Company. The view of the main track in the direction from which the train came was obstructed by cars standing on the spur track close to the crossing. These cars were placed by the railroad company, but were located where the Chemical Company desired them. The train was going at the rate of from 30 to 40 miles an hour. The engineer testified that he ‘whistled back of that Avery Chemical crossing, because [he] considered it a dangerous place’; but there was evidence that the whistle was not blown and the bell was not rung. The crossing was planked, but there was nothing to show by whom this work was done. There was no evidence that the engineer of the train saw the plaintiff's intestate until he was upon the crossing.
We consider first the case against the Avery Chemical Company. The plaintiff's intestate came upon its premises to deliver merchandise purchased from his employer. He was there at the implied invitation of the Chemical Company, and it owed him the duty of exercising reasonable care to keep the driveway in a safe condition for him to use. As was said in Shaw v. Ogden, 214 Mass. 475, 476, 102 N. E. 61, the duty rested on this defendant ‘of warning him against any dangers attendant upon its use which were not known to him and which either were known or in the exercise of reasonable care ought to have been known’ by the defendant. There was, however, no defect in the driveway and this defendant was not responsible for the manner of operating the trains. While the cars standing on the spur track obstructed the view of the approaching train, this obstruction was open and obvious and it was not a breach of duty on the part of this defendant to fail to warn him of its existence. The defendant knew that signals were not given by passing trains, and it had requested the railroad company to signal the approach of trains at this crossing. The request was not granted, but the Chemical Company did not fail in its duty because it did not warn McKnight that signals were not given. It was apparent that the main track must be crossed when he entered or departed from the Chemical Company's premises. He had been over this crossing on at least one occasion prior to the accident; in crossing the tracks he was in a position calling for caution and attention on his part, and he must be presumed to have known the danger. The owner of the premises was not negligent because it failed to warn him that signals were not given by passing trains; and it was not required in the exercise of reasonable care, on the evidence shown on this record, to warn him of the danger. It did not appear that any one in the employ of this defendant saw the train in time to caution him; and it was not obliged to station some one at the crossing for that purpose. Moynihan v. Whidden, 143 Mass. 287, 9...
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