Darling v. Boston & Albany Railroad , 121 Mass. 118 ( 1876 )

Gray, C. J.

The jury should have been instructed to return a verdict for the defendant. The horse, being an estray unlawfully at large on the highway, was a trespasser on the defendant’s railroad, and the defendant owed no duty to the plaintiffs, and was not liable to them, either for a neglect to maintain the fences required by law, or for the striking of the horse by the engine, unless there was reckless and wanton misconduct on the part of those employed in the management of the train. There was no proof of such misconduct. The evidence, viewed as favorably as possible for the plaintiffs, merely showed that the train was moving at a usual and proper rate of speed, and that the engineer did not stop or slacken the train, in order to avoid or give way to an animal which was unlawfully on the railroad. That he was not bound to do. Eames v. Salem Lowell Railroad, 98 Mass. 560. Maynard v. Boston Maine Railroad, 115 Mass. 458. McDonnell v. Pittsfield & North Adams Railroad, 115 Mass. 564. Exceptions sustained.