Khinoveck v. Boston & Maine Railroad

Hammond, J. While the plaintiff, an infant between three and four years of age, had the right to travel upon the strip of land adjoining the defendant’s freight yard, there is no evidence that either in the exercise of a public or private right of way or of any other right was he lawfully upon the defendant’s tracks. Nor is there any evidence that the gully by the side of the strip had anything to do with the accident. Upon the evidence the plaintiff must' be regarded as a trespasser at the place of the accident and therefore the defendant was not bound to anticipate his presence, and it owed him no duty except to refrain from wanton and willful misconduct toward him. June v. Boston & Albany Railroad, 153 Mass. 79. Myers v. Boston & Maine Railroad, 209 Mass. 55. O’Brien v. Union Freight Railroad, 209 Mass. 449, and cases cited. The evidence shows no such misconduct on the part of the defendant or its servants. The plaintiff failed upon his first count. Nor was there any case on the second count. Upon the evidence as between the plaintiff and the defendant the latter was not under any obligation either at common law or by statute to erect or maintain a fence between its freight yard and the adjoining strip of land. Menut v. Boston & Maine Railroad, 207 Mass. 12, and cases cited. Exceptions overruled.