Murphy v. Boston & M.R.R.

• Decision Date: 29 February 1924
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MURPHY v. BOSTON & M. R. R.

248 Mass. 78

142 N.E. 782

MURPHY

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 29, 1924.

Exceptions from Superior Court, Suffolk County; Henry A. King, Judge.

Action of tort by Agnes C. Murphy, administratrix of the estate of Pius S. Murphy, deceased, against the Boston & Maine Railroad to recover for the conscious suffering and death of the deceased. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained, and judgment rendered for defendant.

T. H. Bilodeau, of Boston, for plaintiff.

A. W. Rockwood, of Boston, for defendant.

CARROLL, J.

This action is to recover damages for the death and conscious suffering of the plaintiff's intestate, who was run over by a car of the defendant in the coal yard of the Darrow-Mann Company. The action is brought by the AEtna Life Insurance Company, Agnes C. Murphy having been paid compensation under the Workmen's Compensation Act (Laws 1911, c. 751 as amended by Laws 1912, c. 571) as a dependent of the intestate.

The deceased was employed by the Leahy-Rattigan Construction Company as a carpenter. This company was building a transformer station and office building in the yard of the Darrow-Mann Company, and was doing the planking and cap logging on a wharf on the premises, under a contract with the Darrow-Mann Company. On April 6, 1916, the defendant was operating its cars in the yard of the Darrow-Mann Company, under a contract with this company.A fire hydrant, a part of the Darrow-Mann equipment, was located on the easterly side of the railroad track; a hose was frequently attached to this hydrant for construction work and sometime it was ‘equipped with a faucet’ and ‘when the men there wanted a drink of water they went over to hydrant to get it.’ ‘The Leahy-Rattigan company's men used the hydrant to get water and * * * sometimes the men going over there for a drink would take off the hose used for construction work and drink at the faucet’ and the employees of the Darrow-Mann Company used the hydrant for drinking purposes, and ‘all the different men from all over the plant resorted to this hydrant for drinking water, the hydrant being the only place in the plant where you could get a drink of water.’ There was a path across the tracks leading to the hydrant.

On April 6, the day of the accident, the intestate was working with other employees of the Leahy-Rattigan Construction Company on the wharf on the westerly side of the tracks; he walked up the yard to a point opposite the hydrant and crossed the tracks, which were two or three feet higher than the coal field, to get a drink of water; while returning, in crossing the track he was struck by a car operated by the defendant. The office building which the Leahy-Rattigan company was constructing for the Darrow-Mann Company was on the easterly side of the railroad tracks, at least six hundred feet from the hydrant. Mr. Murphy had done some work on this building but had been employed at the wharf for a week or more before the accident, and on that day ‘only finishing up work such as putting in the chair rail and adjusting doors was being done upon the office building.’ The transformer station and locker building for wearing apparel and tools adjoined the transformer station on the westerly side of the tracks. There was no way from the locker and transformer building to the hydrant except crossing the tracks.

The plaintiff's intestate was working on the premises of the Darrow-Mann Company; his employer, the Leahy-Rattigan Construction Company, under its contract was to do certain work on the Darrow-Mann Company's premises; but the work in which the intestate was engaged was in a different part of the yard than the tracks and hydrant, and did not call upon him to cross the tracks to the hydrant. No invitation was given him to cross the tracks or go to the hydrant, either by the defendant or the Darrow-Mann Company. The fact that a pathway existed over the tracks at this point, that the employees of the various contractors used the pathway in going and returning from the hydrant and used the hydrant for drinking purposes, did not amount to an invitation by the owner of the land to cross the tracks. Knowledge of such use does not amount to an invitation; the mere passive acquiescence in the use to which this portion of the premises was put was not equivalent to an inducement or invitation to use them in this way. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, 87 Am. Rep. 644;Wheelwright v. Boston & Albany Railroad, 135 Mass. 225;Youngerman v. New York, New Haven & Hartford Railroad, 223 Mass. 29, 111 N. E. 607;Laporta v. New York Central Railroad, 224 Mass. 100, 112 N. E. 643;Doherty v. New York, New Haven & Hartford Railroad, 229 Mass. 135, 118 N. E. 281.

The deceased was not required to cross the tracks. In going to the hydrant for his own purposes he was not an invitee but was a licensee of the Darrow-Mann Company. Severy v. Nickerson, 120 Mass. 306, 21 Am. Rep. 514; Laporta v. New York Central Railroad, supra; Carey v. Gray (N. J. Err. & App.) 119 Atl. 176.

In Carpenter v. Sinclair Refining Co., 237 Mass. 230, 129 N. E. 383, it could have been found that the plaintiff was invited to use the rheostat in the performance of his work and that he was ‘not a volunteer or intermeddler.’ In Crimmins v. Booth, 202 Mass. 17, 88 N. E. 449,132 Am. St. Rep. 468, the plaintiff when injured was at work on one of the hatches of a vessel in the course of his employment. Boyle v. Columbian...