Youngerman v. New York, New Haven, and Hartford Railroad Co.

• Decision Date: 12 February 1916
• Citation: 223 Mass. 29
• Parties: MARY E. YOUNGERMAN, administratrix, v. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 29

MARY E. YOUNGERMAN, administratrix, v. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 12, 1916

November 29, 1915.

Present: RUGG, C.

J., LORING, DE COURCY, CROSBY, & CARROLL, JJ.

Passenger. Railroad.

Carrier. Negligence, Of person on premises of railroad corporation Causing death.

No contract giving rise to the relation of carrier and passenger will be implied on the part of a railroad corporation from mere passive acquiescence on its part in a customary use, by persons intending to board its trains as passengers when the trains stopped at a certain station, of a portion of its premises near a track but separated from the station by two tracks and an open girder bridge. Consequently there can be no recovery under St. 1906, c. 463, Part I,

Section 63, for causing the death of a person who, while standing at such place, was killed by a passing train, unless such person is shown to have been in the exercise of due care.

Where one, who while standing upon a portion of the premises of a railroad corporation separated from a station by two parallel tracks and an open girder bridge without an express or implied invitation by the corporation and waiting for a train which was to stop at the station, occupied himself reading a newspaper and did not look nor listen for a train expected on the adjoining track, was struck and killed by the train, it cannot be found that he was in the exercise of due care and since he was not a passenger, no action for causing his death can be maintained under St. 1906, c. 463, Part I, Section 63.

TORT under St 1906, c. 463, Part I, Section 63, for causing the death of the plaintiff's intestate, Conrad Youngerman, on February 24, 1912, the declaration as amended containing two counts, the first count alleging that the deceased was not in the employ of the defendant, while the second count contained an allegation that he was a passenger of the defendant. Writ dated June 5, 1913.

In the Superior Court the case was tried before White, J. The material evidence is described in the opinion. At the close of the evidence the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.

J. H. Vahey, (P.

Mansfield with him,) for the plaintiff.

Joseph Wentworth, for the defendant.

CARROLL, J. At Field's Corner station, the defendant's railroad crosses Freeman Street by an overhead bridge. The station and platform are on the west, or left hand side of the tracks looking toward Boston, and north of Freeman Street. On February 24, 1912, while standing on the opposite side of the tracks, a few feet south of the bridge spanning Freeman Street, and between the easterly rail of the inbound track and a retaining wall, the plaintiff's intestate was struck by an engine coming from the south, and instantly killed.

1. On the morning of his death the deceased came from Geneva Avenue, south of the station, passed to a vacant lot, thence to the top of the retaining wall on the east of the track, walking along this wall until near Freeman Street, when he stepped up a few feet to the level of the tracks, where he was standing when struck. There was abundant evidence that for several years it had been customary to use this means of approach to the trains. There were no notices prohibiting this use and no objection was made to it by the defendant, nor were passengers forbidden to enter cars on the east side of the tracks. It was usual for the last car of the train (which the...