June v. Boston & Albany Railroad , 153 Mass. 79 ( 1891 )

Holmes, J.

The plaintiff’s intestate was not a passenger. We do not think argument necessary to show that a man walking toward a railroad station with the intention of buying a ticket and taking a train after he gets there, is not a passenger .before he reaches the station, even if he might be one in the same place if he had begun his journey. Dodge v. Boston & Bangor Steamship Co. 148 Mass. 207.

There was no evidence of negligence on the part of the corporation, or of unfitness or gross negligence of its servants. Pub. Sts. c. 112, § 212. See Commonwealth v. Boston Maine Railroad, 133 Mass. 383. The place at which the intestate was killed was not a highway, town way, or travelled place, within the Pub. Sts. c. 112, §§ 163-165. No reason for special precautions was shown, except that a plank walk four feet wide crossed the track, and ended in the door of a private building, with a warning against trespassing hard by. The public was not invited to use this walk as a crossing, and the defendant was not bound to expect them there. Donnelly v. Boston Maine Railroad, 151 Mass. 210. The plaintiff’s intestate was not invited there. He was not going to or coming from the building in which the walk ended, but had come from a more distant building along the side of the track, instead of going by the road on which the latter building opened. It would seem that he was not even on the walk, but between the rails facing the train which killed him. At most he was no more than a licensee. As towards him, there was no negligence on the part of the defendant or its servants in not providing a sign-board, gate, or flagman, and there was no duty to whistle, although in fact the engine was whistling. The defendant had a right, as against him, to run its trains upon its tracks at such speed as it found convenient, and it was for the deceased to take care that he was not hurt by their doing so. There may be cases in which even unintended damage done to a licensee, by actively bringing force to bear upon his person, will stand differently from merely passively leaving land in a dangerous condition. But something more must be shown than that trains are run in the usual way upon a railroad, where the place does not of itself give warning of his probable presence, and when he is not seen until it is too late. See Metcalfe v. Cunard Steamship Co. 147 Mass. 66; Batchelor v. Fortescue, 11 Q. B. D. 474. There is a plain difference between this case and cases like Byrne v. New York Central & Hudson River Railroad, 104 N. Y. 362, and Taylor v. Delaware & Hudson Canal, 113 Penn. St. 162, where the crossings were habitually used by the public, and where there was evidence of a failure to ring the bell or sound the whistle, the only precaution of which it occurs to us that there could have been any question here. See Stubley v. London & North Western Railway, L. R. 1 Ex. 13, 17; Dublin, Wicklow, & Wexford Railway v. Slattery, 3 App. Cas. 1155, 1163.

The deceased was first seen when the train was within less than three hundred feet, and running at from thirty-five to forty miles an hour. The engineer at once began to blow short whistles. It cannot be called gross negligence, if negligence at all, that he did not at once put on the brakes. His natural expectation was that the deceased would get off the track, rather than lose his head.

In view of what we have said, it is unnecessary to consider whether there was any evidence of due care on the part of the plaintiff’s intestate, or whether the evidence did not rather prove its absence. Exceptions overruled.