McCarty v. Fitchburg Railroad

C. Allen, J. The plaintiff complains of the ruling that there was not sufficient evidence to support a verdict in his favor, and it is incumbent on him to make it appear to us that there was some evidence which would have warranted such a verdict. If it be assumed that the defendant with its engine or cars ran over the plaintiff, we can find nothing in the bill of exceptions to show any gross or reckless carelessness on its part, or the breach of any duty which the defendant owed to the plaintiff. The plaintiff was alone upon the railroad track. Apparently he had escaped from immediate supervision, and walked down Jenner Street to Front Street, and then, at some point which there was no evidence to fix, had crossed Front Street and passed upon the railroad track. It is now urged that the defendant ought to have had a fence between Front Street and the railroad track, which would have kept the plaintiff off. The requirement of the Pub. Sts. c. 112, § 115, in relation to building fences, does not include places where the convenient use of the road would be thereby obstructed. There was nothing to show that the requirement to fence the track included such place or places as would have cut off the plaintiff’s approach and entry upon it. One of the plaintiff’s witnesses testified that freight was unloaded from the cars on to teams on Front Street, between Mason Street and the end of the freight-house, which was a distance of two hundred and twenty-six feet; and another of his witnesses testified that the place where the boy was injured was just opposite the foot of Mason Street where it joins Front Street. It would thus appear that the place where the plaintiff received his injury must have been very near, if not exactly upon, the place where [20] it was customary to unload freight from the cars on to teams on Front Street. Certainly there is nothing in this testimony to show, affirmatively, that a fence at the place of the injury would not have obstructed the convenient use of the railroad in loading and unloading cars. But the plaintiff relies on the fact that the jury took a view of the premises, and he urges upon us that, from what was seen at the view, the jury might have found that the defendant ought to have had such a fence there. Now this, so far as the argument is addressed to us, is a mere conjecture. No pían was shown to us, and there was nothing to show that the convenient use of the railroad would have permitted the erection of such a fence. No doubt a view is often advantageous in enabling a jury better to understand the testimony of witnesses, and they may derive some additional information not directly testified to which may be considered by them. Nevertheless, even where the statutes have given a positive right to either party to have the jury take a view of land for the purpose of aiding in their estimation of its value, the court may set aside their verdict on the question of damages, as well as on other grounds. Harding v. Medway, 10 Met. 465. Fitchburg Railroad v. Eastern Railroad, 6 Allen, 98. Tully v. Fitchburg Railroad, 134 Mass. 499, 503. If in such cases the court may set aside the verdict, clearly it may rule that the evidence is insufficient to warrant a verdict. The plaintiff in the present case entirely fails to make it appear in his bill of exceptions that there was anything before the jury, to be derived either from the testimony or from their view of the premises, which would have warranted a verdict for him. Merely stating that the jury took a view of. the premises, without showing that anything was to be seen there which would show the duty to build and keep a fence at the place of the plaintiff’s entrance upon the railroad track, will not entitle the plaintiff to a reversal of the ruling of the presiding justice. The trial was about sixteen months after the accident. We cannot see how the view of the premises, either taken by itself alone, or in connection with any evidence which, is reported in the bill of exceptions, could have enabled the jury properly to find that the defendant ought to have had a fence at such places as would have kept the plaintiff off from the track at the place where the accident happened. [21] The case much resembles Morrissey v. Eastern Railroad, 126 Mass. 377. See also McEachern v. Boston & Maine Railroad, 150 Mass. 515. Exceptions overruled.