Romana v. Boston Elevated Ry.

• Decision Date: 23 May 1914
• Citation: 218 Mass. 76,105 N.E. 598
• Parties: ROMANA v. BOSTON ELEVATED RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 76

105 N.E. 598

ROMANA v. BOSTON ELEVATED RY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1914

COUNSEL

Frederick J. Daggett and Jesse M. Gove, both of Boston (Philip Mansfield, of Boston, of counsel), for plaintiff.

Sheldon E. Wardwell and Wm. G. Thompson, both of Boston, for defendant.

OPINION

SHELDON J.

This bill of exceptions is of a kind that is becoming too frequent--so frequent as to suggest that if persisted in it may call for drastic action to be taken by the court of its own motion. It is such a bill as ought not to have been presented or allowed. It calls for undue effort on the part of the court to pick out the few important facts from the undigested mass of irrelevant and impertinent facts with which they are covered up. See Cornell-Andrews Smelting Co. v. Boston & Providence R. R., 215 Mass. 381, 387 102 N.E. 625, and Isenbeck v. Burroughs, 105 N.E 595. That there was no necessity for so voluminous a bill is manifest from a reference to the briefs of counsel, in each of which the material facts and evidence and the questions of law raised thereon are set forth with ample fullness but in a very much smaller compass than was taken for the exceptions. We shall not attempt in dealing with such a bill to do more than state the conclusions which we have reached.

We find no evidence that it was in consequence of an invitation or inducement from the defendant, express or implied, that the plaintiff went upon the defendant's land to the place where she was injured. There was evidence that the defendant had permitted the use of this path by children and others living in that neighborhood or coming thither, including the plaintiff, but nothing more than this. She had while she was on the defendant's premises merely the rights of a licensee. The defendant, so far as appeared, had not laid out or wrought the path for use as a way by any one; and such cases as Sweeney v. Old Colony R. R., 10 Allen, 368, 87 Am. Dec. 644, and Holmes v. Drew, 151 Mass. 578, 25 N.E. 22, have no application. The fact, which the jury might infer from the evidence, that the defendant suffered its premises to be in a condition which was likely to attract people and did attract the plaintiff, does not constitute even an implied invitation. Wright v. Boston & Albany R. R., 142 Mass. 296, 7 N.E. 866; Daniels v. N.Y. & N. Eng. R. R., 154 Mass. 349, 28 N.E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253; Gay v. Essex Electric St. Ry., 159 Mass. 238, 241, 34 N.E. 186, 21 L. R. A. 448, 38 Am. St. Rep. 415; Holbrook v. Aldrich, 168 Mass. 15, 16, 46 N.E. 115, 36 L. R. A. 493, 60 Am. St. Rep. 364; Brayden v. N. Y., N.H. & H. R. R., 172 Mass. 225, 226, 51 N.E. 1081; Griswold v. Boston & Maine R. R., 183 Mass. 434, 67 N.E. 354; West v. Poor, 196 Mass. 183, 81 N.E. 960, 11 L. R. A. (N. S.) 936, 124 Am. St. Rep. 541; Norris v. Hugh Nawn Contracting Co., 206 Mass. 58, 91 N.E. 886, 31 L. R. A. (N. S.) 623, 19 Ann. Cas. 424. The defendant owed therefore no other duty to the plaintiff than to abstain from any willful, wanton or reckless conduct that was likely to do her injury. That is, the plaintiff had no right of action, unless she could show that her injury was due to the willful, wanton or reckless misconduct or negligence of the defendant or of the defendant's servants in charge of the place or to actual force used against her by them. Stevens v. Nichols, 155 Mass. 472, 475, 29 N.E. 1150, 15 L. R. A. 459; Byrnes v. Boston & Maine R. R., 181 Mass. 322, 63 N.E. 897.

But in our opinion there was evidence from which it could be found that the plaintiff's injury was so caused. There was evidence which warranted a finding that Sullivan was a servant of the defendant whom it had put in charge of these premises and that before the happening of the accident Sullivan had been warned that electricity was escaping from the defendant's wires into the pole. This was a source of concealed danger to children, and others who, as the jury could find, were in the habit of going by the path past the pole with the knowledge and by the license of the defendant. The situation was such, and was known by the defendant to be such, as the jury could find as to bring those children in passing by the pole into close proximity to it and very likely into actual contact with it. The defendant through Sullivan had notice that they were exposed to imminent danger from the escape of electricity. That electricity, it is a matter of common knowledge, is a highly dangerous force or substance, and the resulting danger to life or limb could be taken to have been known to the defendnat. It is as if the defendant for its own purposes lawfully had kept there a...