MacFarlane v. Boston Elevated Railway Co.

Knowlton, C. J. The plaintiff’s intestate, while riding on a bicycle on one of the tracks of the defendant railway company, came upon a place filled with sand, where work which was then being done was unfinished, and he was thrown upon the other track in front of an approaching car and killed. The two defendants were engaged in reconstructing and repaving the street, the city doing that part of the work outside of the tracks of the street railway, and the railway company that part within its tracks. The street had settled, and at the place of the accident one of the tracks had been raised about a foot above the level of the street on each side. The work on the northerly side, in charge of the city, was then going on, the northerly track had been raised, and paved except for three openings, each of a few feet in length, which had been left for the construction of a cross-over from one track to the other, and the paving of the track had been covered with a thin layer of sand, and the openings in it had been filled with sand nearly to the level of the adjacent paving. In each case the principal questions are whether there was evidence to warrant the jury in finding negligence on the part of the defendants’ servants and due care on the part of the plaintiff’s intestate. In the declaration against the railway company there were different counts, but in each case there was a count under the [185] R. L. c. 51, §§ 17, 18, which impose upon a railway company, doing the work between its tracks under a permit from the city, the same liability for the condition of the surface there that the city is under in reference to its condition in other places. The southerly track and the street on the southerly side of it remained undisturbed and were open for travel. The northerly side of the street was dug up for repairs, and was obstructed by material so that much of the way it was impassable. Part of the pavement between the two tracks was dug up, and that part of the street was unfit for travel. According to the undisputed testimony there were wooden horses extending from the track across the northerly part of the street indicating that this part of the street was closed to travel. There was testimony that the horses bore the usual sign, “No passing through,” or “Street closed for repairs,” but this was contradicted. At either end of the work between the tracks a red flag was set, showing that this part of the street was not open for use. Between the rails of the northerly track there was no sign or obstruction, as the rails were in position, and the cars were passing over them. But the horses, coming up to the rails on the northerly side, and the red flag between the tracks, gave reasonable notice to travellers that the street was being repaired and was withdrawn from public use from the southerly track to the outer line of travel on the northerly side. This included the northerly track of the railway, on which fresh sand showed that work had lately been done there. It had been raised, so that at the place of the accident it was about a foot above the surface on each side of it. There is no doubt that the defendants were engaged in making proper repairs, and there is no ground for a contention that the work was not being done properly. What was the duty of the respective defendants in regard to the work done by each, so far as it might affect the safety of travellers on the highway ? It was to give them proper warning, such as would enable them to avoid the danger. If they put up signs and barriers which showed that one side of the street was withdrawn from public travel by reason of the repairs being made upon it, which rendered it for the time unfit for use, they performed their duty. On receiving notice of this kind, it was the duty of a traveller [186] to use only that part of the way which was left open for use. Such a notice was equivalent to a statement that the way was dangerous, was not to be used, and that the defendants would not be responsible for any accident that might happen from the use of it. One who should pass over it, after receiving such a notice, would be bound to know that he was travelling at his own risk, and that the city and the railway company owed him no duty to make further provision for his safety. In the present case the defendants could have done nothing more, unless they provided a watchman who should attempt, by active measures, to keep persons out of danger who voluntarily had disregarded sufficient warnings given by signs and barriers. None but persons on bicycles could have reached this place of danger without great inconvenience. Persons driving in ordinary vehicles would be precluded by the fact that the track was a foot above the surface on either side, and that the pavement was dug up on both sides of these rails. Travellers on foot would go upon the sidewalk. While a person on a bicycle might think that he could get through upon the track, and while the defendants owed the same kind of duty to travellers on bicycles as to those travelling in other ways, one riding on a bicycle could not disregard the notice that this part of the street was not open for public travel, by reason of repairs. He was bound to know that this notice left the defendants with no further duties in regard to the defective condition of the street, and if he undertook to go forward without taking precautions for himself that would ensure his safety, he was not in the exercise of due care. We are of opinion that there was no evidence of negligence on the part of either of the defendants. Jones v. Collins, 177 Mass. 444. Compton v. Revere, 179 Mass. 413. Butman v. Newton, 179 Mass. 1, 9. Torphy v. Fall River, 188 Mass. 310. McMahon v. Boston, 190 Mass. 388. See also Hyde v. Boston, 186 Mass. 115, and cases cited; Harvey v. Malden, 188 Mass. 133. Exceptions overruled.