Conry v. Boston & Maine Railroad

Pierce, J. The plaintiff’s intestate, Annie Cullen, was struck and killed by a passenger train bound from "Boston to Lowell, while -crossing the defendant’s tracks in front of the North Somerville station, about three o’clock in the afternoon of June 4,1913. She lived on Newburn Avenue, Somerville, which ran from the easterly side of the railroad location. On this side and extending across Newburn Avenue was a fence, in the centre of which an opening with posts about two feet apart made a suitable entrance for pedestrians from Newburn Avenue to the railroad premises and a suitable exit from there to the avenue. The station building was on the westerly side of the railroad tracks opposite Newburn Avenue. A concrete platform extended along the tracks in front of the station and for a distance of about one hundred feet north and south beyond the building. There was a corresponding platform of about the same distance on the easterly side of the tracks. In front of the station building a space fifteen feet in width was covered with planking between the rails and between the platform and the rails and extended across the tracks. The tracks were straight for a distance of at least half a mile from the station in both directions. No train going [413] north was due to stop at the station until 3:51 p. m. and none going south until 3:40 p. M. The intestate went to the station to obtain a time-table, intending to take a train later in the day. She stood on the station platform, and, as soon as a freight train going south toward Boston passed, she took the child who was with her in her arms and started across the tracks on the planked space. There was evidence that before starting she looked “toward Boston and the opposite way,” that she again looked in both directions when she got between the inbound and outbound tracks, and that the train was not then in sight. There was evidence that smoke or steam from the engine of a freight train then passing under a bridge one hundred and seventy feet south from the place of the accident, obscured to some degree the view of the bridge under which the train from Boston passed; that the train from Boston as it approached the bridge was going about twenty-five miles an hour, that at the bridge the speed was thirty to thirty-five miles an hour and at the place and time of accident had increased to fifty or sixty miles an hour. There was also evidence that no notice was given of the approach of the train by the ringing of a bell or otherwise. The intestate was struck by the engine as she had her foot ready to step upon the platform. At the close of the evidence the defendant moved that a verdict be directed in its favor. This motion was denied and the jury found for the plaintiff. In the opinion of a majority of the court there was evidence for the jury of the plaintiff’s due care. Giaccobe v. Boston Elevated Railway, 215 Mass. 224. Lunderkin v. Boston Elevated Railway, 211 Mass. 144. So far as appeared she had no reason to anticipate [414] the passage of a train at that time and she could be found to have been affirmatively careful and diligent in self protection. McCue v. Boston Elevated Railway, 221 Mass. 432. When she stood in the space between the inbound and outbound tracks no train was in sight. If she saw the train come out from the bridge when she stepped on the outbound track, the jury could find that a reasonable person, affirmatively diligent in self protection, would not have anticipated that the speed of the train would be increased from thirty to sixty miles an hour in its passage over one hundred and seventy feet of space. Hunt v. Old Colony Street Railway, 206 Mass. 11. There was also evidence to warrant a finding of the defendant’s negligence in running its train past a station at the rate of speed shown by the evidence, at a time when passengers and others were invited to cross the tracks. Subject to an exception by the defendant, evidence was admitted that after the accident a fence was erected between the inbound and outbound tracks at the North Somerville station, not as evidence on the question of the particular act of negligence but “only for the purpose of showing that it was physically possible and practically possible to build such a fence and to maintain such a fence in the conduct of the business of the defendant company.” The evidence was not admissible to prove the negligence of the defendant. Shinners v. Proprietors of Locks & Canals, 154 Mass. 168. And it was not admissible to prove that it was “physically possible and practically possible to build such a fence and to maintain such a fence in the conduct of the business of the defendant company” because there was no evidence that the defendant contended that it was either impossible or impracticable to erect and maintain the fence as it was in fact erected. The case of Beverley v. Boston Elevated Railway, 194 Mass. 450, is not an authority for the admission of the evidence. The defendant in that case as shown by the bill of exceptions admitted the possibility of the change but denied that it was practicable. A distinct issue of fact was thus presented, and the evidence was admitted merely for the purpose of showing what was practicable in the use of the station. That the evidence was prejudicial in the highest degree is indisputable; the logic of the events would inevitably lead the jury to a conclusion that the defendant had recognized the danger [415] and had taken the precaution to prevent other accidents by making it impossible to pass from one platform to the other across the tracks. We do not think the statement of the judge to the jury at the close of the charge, that “The fact that the defendant did not maintain a fence between the inward and outward bound tracks cannot be considered as evidence of negligence at that time,” was sufficient in form or force to eradicate from the minds of the jury the- effect of the admitted evidence. To accomplish this end they should have been told that the evidence was admitted improperly and explicitly enjoined to disregard for any purpose of proof the fact that a fence had been erected by the defendant between the tracks since the accident. Exceptions sustained.