Allerton v. Boston & Maine Railroad

Knowlton, J. The plaintiff’s intestate had ceased to be a passenger before the accident which caused her death. She had reached her destination, had alighted from the train, had taken a position upon the sidewalk of the highway, and thence had started to cross the track along the street, not upon her way to the defendant’s station, but to some other place which she had in mind. Was there any evidence at the trial that she was in the exercise of due care ? It is well established law, in this Commonwealth and elsewhere, that one who starts to cross a railroad track without looking for approaching trains, unless he has a good reason for not looking, is not in the exercise of proper care. And this rule has been repeatedly applied to persons crossing a double-track railroad, who have started immediately after the passage of one train without looking for the approach of another. Warren v. Fitchburg Railroad, 8 Allen, 227. Bancroft v. Boston Worcester Railroad, 97 Mass. 275. Mayo v. Boston & Maine Railroad, 104 Mass. 137, 141. Wheelwright v. Boston & Albany Railroad, 135 Mass. 225. There is nothing in the case at bar to relieve the plaintiff from the operation of this rule. The gates upon the highway were down, as a warning that the tracks were in use, and that it was not safe to cross. As soon as the train from which the plaintiff’s intestate had alighted passed on, she started to cross, without waiting for the gates to be raised, and without looking to see whether a train was approaching upon the other track. The evidence shows that, if she had looked after the first/train passed, she could not have failed to see that by which she was afterwards struck. The latter train, when it met the former one from which she alighted, was going at the rate of five to seven miles an hour, with its atmospheric brake on, about to make the stop at the station. She must have known that this was a double-track railroad, upon which trains running in each direc [247] tion were always to be expected. There was no express or implied invitation to her to cross, nor any excuse for her crossing without looking for a coming train. There was no evidence in the case to warrant a finding that she was in the exercise of due care. ■The declaration contains two counts, the first alleging that the plaintiff’s intestate was a passenger, and claiming under that part of c. 112, § 212 of the Public Statutes which makes a railroad corporation liable when the life of a passenger is lost through its negligence, or the gross negligence of its servants or agents, and the second claiming under that part of the same section which creates a liability when the life of a person in the exercise of due diligence and not a passenger is lost by reason of such negligence. This last count contains all the allegations appropriate to a claim under this branch of the statute, and no others. Section 213 of the same chapter creates a liability in a particular class of cases, where a person is injured by collision with the engines or cars of a railroad corporation at a crossing of a highway or town way at grade, and it appears that the corporation neglected to ring the bell or blow the whistle as required by law, and such neglect contributed to the injury. In such cases, the person injured may recover, unless it appears that he was at the time guilty of gross or wilful negligence, or was acting in violation of law, and that such negligence or unlawful act contributed to the injury. The declaration does not contain the allegations necessary to bring the case within this section. It is nowhere alleged in it that the accident occurred at a crossing of a highway or town way, or that the injury was by collision with an engine or car of the defendant. On the contrary, both counts follow in their averments the precise language of those parts of § 212 under which they were respectively brought. Under the last count there are certain specifications of negligence, which do not change the character of the count, nor contain the allegations material to a claim under § 213. The suit must therefore be deemed to have been brought under. § 212, and the plaintiff cannot hold the defendant to answer under the provisions of § 213. Wright v. Boston & Maine Railroad, 129 Mass. 440. [248] The Superior Court has ample power to allow amendments in all eases pending therein, and' if the plaintiff at the trial thought her action maintainable under that section of the statute, and desired to avail herself of its provisions, she should have applied for leave to amend her declaration. In the opinion of a majority of the court, the entry must be Exceptions overruled„