Sawler v. Boston & A.R. Co.
| Decision Date | 09 April 1959 |
| Parties | Stanley D. SAWLER, Administrator, v. BOSTON AND ALBANY R. R. COMPANY & New York Central Railroad Company. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sumner W. Elton, Boston, for plaintiff, submitted a brief.
Richard G. Crotty, Worcester, for defendants.
Before WILKINS, C. J. and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.
This is an action of tort to recover damages under G.L. c. 229, § 2A, for the death of the plaintiff's intestate, his daughter, who was approximately two years and four months old when she died. On March 7, 1957, the child who in some manner unknown to the plaintiff or the defendants was on the tracks of the Boston and Albany Railroad Company, which were leased by it to the New York Central Railroad Company, was struck and killed by a train operated by the New York Central.
Upon the conclusion of the opening statement of the plaintiff's attorney of what he expected to prove, the defendants moved that the judge direct the jury to return a verdict for each of them. Subject to exceptions of the plaintiff the motions were allowed. There was no error.
The statements of counsel for a plaintiff in his opening are to be treated not only as if put in evidence but as being true. Murphy v. Boston & Maine R. R., 216 Mass. 178, 179, 103 N.E. 291.
This child lived with her parents and other members of her family on Fay Court in Southborough. Fay Court runs northerly from its intersection with Bridge Street to the southerly side of the railroad tracks. The Sawler home is situated about one hundred fifty feet southerly from the tracks and the northerly boundary of the Sawler land abuts the railroad right of way. Along this southerly side of the railroad right of way there were fence posts, some of which were standing and some were not. There were remnants of rusty pieces of wire which formerly were attached to the posts and had made a complete fence many years before. At the time of this accident this fence was completely out of repair, with many of the posts lying horizontal and no wire between the posts. There was a well worn grassy path from the paved surface of Fay Court to the railroad right of way and no fence, barrier or obstacle to obstruct anyone from walking across the railroad tracks at the foot of Fay Court.
Shortly before the child was struck she was missed by her mother who ran down Fay Court to the railroad right of way and arrived there just in time to see her child struck.
In his opening, counsel for the plaintiff relied solely on the negligence of the railroads in not maintaining fences along the railroad right of way to prevent this child from getting on the tracks. 1 He made no claim that any wilful, wanton, or reckless misconduct on the part of any of the defendants' employees caused the accident.
Plainly the deceased child here was not a business invitee of the defendants or either of them. Her status was that of a trespasser or licensee. The existence of the 'well worn path' crossing the tracks since the 'early forties' is not sufficient to establish an invitation to the public to use such a path to cross the tracks. Passive acquiescence on the part of the defendants or their employees and failure to prevent such use cannot be construed as an invitation or inducement, express or implied....
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Beausoleil v. Massachusetts Bay Transp. Authority
...their rights of way in order to prevent injury or death to members of the public who might enter onto their tracks. See Sawler, 339 Mass. at 36-37, 157 N.E.2d 516; Khinoveck v. Boston & M. R. R., 210 Mass. 170 at 172, 96 N.E. 52 (1911); Menut v. Boston & M.R.R., 207 Mass. 12, 92 N.E. 1032 (......
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Boyd v. National R.R. Passenger Corp.
...conduct of its agents that caused such death was wilful, wanton, or reckless. See G.L. c. 229, § 2. See also Sawler v. Boston & Albany R.R., 339 Mass. 34, 36, 157 N.E.2d 516 (1959); Corrado v. New York, N.H. & H. R.R., 333 Mass. 417, 418-419, 131 N.E.2d 201 (1956); Beausoleil v. Massachuset......
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Sandler v. Com.
...drain resulting in accumulation of ice on defendant's premises, not wilful, wanton, or reckless conduct); Sawler v. Boston & Albany R.R., 339 Mass. 34, 36, 157 N.E.2d 516 (1959) (long-standing failure to fulfil statutory duty to maintain fence along right of way, thus permitting child to cr......
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Beausoleil v. National R.R. Passenger Corp.
...primarily relies, essentially for the reasons described in the March 30, 2001 decision. For example, in Sawler v. Boston & Albany R.R. Company, 339 Mass. 34, 36, 157 N.E.2d 516 (1959), the court was primarily addressing the issue of whether the plaintiff was a trespasser. Sawler deals with ......