Murphy v. Boston & Albany Railroad Co.

• Decision Date: 28 June 1882
• Citation: 133 Mass. 121
• Parties: Daniel J. Murphy v. Boston and Albany Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 121

Daniel J. Murphy v. Boston and Albany Railroad Company

Supreme Court of Massachusetts

June 28, 1882

Argued March 2, 1881 [Syllabus Material]

Suffolk. Tort for injuries sustained by the plaintiff by being struck by the defendant's cars. Trial in this court, before Morton, J., who allowed a bill of exceptions in substance as follows:

The plaintiff was struck by the defendant's cars, while he was crossing its tracks between South Street and Albany Street, both largely travelled public streets and thoroughfares, in Boston, at a place where a public street called Harvard Street, which ended at Albany Street, would have passed if extended to South Street. sad crossing was between, and a mode of access to, two freight-houses of the defendant.

It was admitted that this crossing was not a public way, and that the defendant had planked the same and kept a flagman there, and it appeared that large numbers of vehicles and men on foot crossed there without prohibition. The jury viewed the premises, and the plaintiff contended that it appeared from this view, and the evidence in the case, that the defendant had so arranged this crossing with planking and paving as to make it an apparent continuation of Harvard Street from Albany Street to South Street, and thus held it out to the world as a public crossing, and induced plaintiff to cross there. The plaintiff was a pupil at a public school, and crossed the tracks on the way from his home to said school, as he had frequently done before.

The plaintiff contended that the defendant was negligent in backing its train around the curve over the crossing without proper warning or precaution against accident, in omitting to provide another flagman to guard the crossing, in giving the flagman who was there too much other work to attend to, and in the failure of the flagman to attend to his duty. The evidence was conflicting as to where the plaintiff crossed and was injured.

The defendant requested the judge to instruct the jury as follows: "1. Such inducement could only relate to the place or section thus planked and paved, and if the plaintiff, without any action or direction on the part of the defendant or its servants, passed over the tracks elsewhere than on such place or section, and was struck on the tracks, and not upon that place or section, or would not have been struck if he had kept wholly upon the planking or paving, he cannot recover in this action. 2. If the only inducement or invitation to cross the tracks, at or near the place where the plaintiff was injured, was by fitting the crossing with such planks and paving as would enable persons transporting goods to and from the defendant's freight-houses adjoining to pass conveniently, and placing one flagman there and not objecting when other persons and vehicles also crossed, -- these facts alone are not evidence of an invitation or inducement to persons who had no occasion to go to those freight-houses for goods or business, and especially are not evidence, without something else, of any invitation or inducement to young boys on their way to a school, who could conveniently reach the same by another somewhat longer way, to come over such crossing to such school. 3. If the only invitation or inducement given to the plaintiff to cross the tracks was by paving and planking the crossing, and placing one flagman, charged with certain duties, at that crossing, and permitting vehicles and footmen to cross over it, this invitation or inducement was only to cross on the pavement and planking laid down, and with such protection as that one flagman could conveniently and reasonably give in the performance of those duties; and that no person, acting on that alleged inducement or invitation, had a right to hold the corporation responsible for any want of due care in not providing additional protection. 4. Any action or arrangement of the defendant, in regard to the alleged crossing, by planking, paving, permitting vehicles or persons to cross, leaving, placing or omitting to place any sign designating the crossing as dangerous, as a private way or a street, or stationing one flagman there, if it operated or could operate as an inducement or invitation to cross at all, could operate only as an inducement or invitation to use the crossing solely in the manner, over the ground, and with the protection actually provided and arranged, set apart and given by such action or arrangement, and did not create any obligation or duty to provide additional protection by another flagman or otherwise, or protection over or upon any other ground or place."

Upon the matters embraced in these requests, the judge instructed the jury, that it was for them, on all the evidence, to say whether the defendant had held out this crossing as a proper place for all persons, including the plaintiff, to cross, and thus, by its...