Fuller v. Boston & Albany Railroad , 133 Mass. 491 ( 1882 )

By the Court.

The declaration, which contains only one count, sets out a good cause of action against the defendant at common law. It does not sufficiently set out a cause of action under the St. of 1874, c. 372, § 164. Wright v. Boston & Maine Railroad, 129 Mass. 440, The learned judge who presided at the trial in the Superior Court held that the count set out two distinct causes of action, and allowed the plaintiff to go to the jury both upon the liability of the defendant at common law and on its liability under the statute. This was error. The defendant was entitled to the ruling asked, that the plaintiff could not recover on his declaration unless he was using due care when hurt. As there must be a new trial, it is not necessary to consider the other questions presented by the bill of exceptions.

Exceptions sustained.