Stewart v. New York, New Haven, & Hartford Railroad

Loring, J. The deceased was run down from behind by a train of four electric cars as he was walking beside the track on his way to a stopping place on Nantasket Beach, called Surf-side, to take a train. The train which hit him was not the train he was intending to take, but was coming from the opposite direction on the track beside which he was walking, the track for the train he intended to take being beyond that track. The accident happened soon after 10.30 p. m. His companion was the only person then present who testified on the stand. It appeared from his testimony that during the morning and afternoon of the day in question the witness and the deceased had been drinking whiskey, and that between 8 p. m. and 10.30 P. M. they drank from twelve to twenty glasses of beer apiece. How the deceased happened to get in the way of the train did [270] not appear from the testimony of the witness. The witness testified that he was lighting his pipe at the time and did not pretend to know just what the deceased was doing at that particular moment. And although the witness testified that the deceased was not intoxicated he did testify that both of them were not paying very much attention to the train. On this evidence the way in which the accident happened was matter of conjecture, and did not warrant a finding of negligence in the first case or of gross negligence of the defendant’s servants in the second case. See Kenneson v. West End Street Railway, 168 Mass. 1; Regan v. Lombard, 181 Mass. 329; Curtin v. Boston Elevated Railway, 194 Mass. 260; Ryan v. Fall River Iron Works, 200 Mass. 188; Ralph v. Cambridge Electric Light Co. 200 Mass. 566; Horne v. Boston Elevated Railway, ante, 231. Exceptions overruled.