Rigg v. Boston, Revere Beach, & Lynn Railroad , 158 Mass. 309 ( 1893 )

Barker, J.

If the plaintiff’s intestate, while walking from Oak Island to Crescent Beach upon the defendant’s land, was not a mere licensee, his invitation was such as to make it incumbent on himself to keep out of the way of trains. The making of a long plank walk with railings for the use of visitors to the beach on the side of the railroad next the sea was not an invitation to the exclusive use of any other part of the defendant’s location, and gave visitors no right to expect that the track would not be used for the passage of trains. Assuming that because the cross walk was on the defendant’s land, and was connected with one end of the defendant’s walk, it was an invitation to cross the track at that point, it held out no inducement that the crossing was free from danger. Those who were impliedly invited by its existence to cross the rails at that point were only invited to do so taking upon themselves the obvious risk of the use of the track for the moving of trains. And if the side rails of the cross walk were an invitation to stand within the space marked by them while awaiting the passage of a train, they were not an invitation to stand with a portion of the person outside that space, which is what the plaintiff's intestate did, while, if he had kept within the space which the invitation authorized him to occupy, he would have been safe from injury by the train. Indeed, the exceptions show that, as the distance between the track and the post at the nearer end of the railing was five feet and one half-inch, and the extreme projection of the car step from the track toward the post was only three feet and four inches, the deceased to have been touched by the train must have so placed himself that the part of his body struck was twenty and one half inches beyond the post, and this is more than the thickness of the body of a man of usual size. Besides this, the curve of the track and the direction of the train were such that, if there was any lateral swing, it would tend to throw the ears farther from the post than if they had been stationary. The deceased and his companions saw the train when it was two hundred feet away, and waited for it to pass. There was time for a movement backward, and no crowd of persons, or anything to prevent such a movement, and no exigency for him to stand where, with the train approaching at such a high rate of speed, he was obviously exposed to danger. Upon the evidence, knowing the approach of the train at speed, he unnecessarily stood so near the track that the common sense of mankind must at once condemn his act as a want of ordinary care.

Experiments tried shortly after the accident were immaterial in the view of the case which we adopt. The presiding justice might properly rule upon the effect of the evidence, and direct a verdict, notwithstanding the fact that the jury had taken a view; Tully v. Fitchburg Railroad, 134 Mass. 499, 503; and we see nothing in the statement of what occurred at the view to show that his ruling was wrong. Exceptions overruled.