Hamilton v. Boston, Revere Beach & Lynn Railroad

DeCourcy, J. At Ingalls station in Winthrop the double tracks of the Boston, Revere Beach and Lynn Railroad run north and south; the easterly track being used by trains going toward Boston, and the westerly one by trains from Boston. The station building is about fifty-eight feet to the east of the nearest rail, and across Walden Street. Two hundred and thirty-five feet south of the station a public highway, Lincoln Street, crosses the railroad tracks at right angles. Alongside and level with the easterly track a hard dirt walk or space extends from Lincoln Street northerly to a point beyond the steps opposite said station building. This walk is about seven feet four inches wide for the first one hundred and sixty feet, and then widens as it nears the steps. It is commonly used by passengers while waiting for trains going in either direction, and in boarding and alighting therefrom. Two electric lights, maintained by the town, are located on the southerly side of Lincoln Street; one near the easterly line of the railroad location, and the other at the corner of Read Street, eighty feet west of the crossing. Two other lights maintained by the railroad company hang over said walk, the first one hundred and one feet north of Lincoln Street, and the other one hundred and nineteen and nine tenths feet farther north. At about 9:30 p.m. on November 21, 1917, the body of the plaintiff’s intestate was found lying on said walk, with the head in the direction of Lincoln Street, and about thirty-three feet north from said street. At that time the light one hundred and one feet north of Lincoln Street was out. It appears that the intestate, Elizabeth J. Gilkie, was an elderly woman, whose sight and hearing were good. On the evening of her death she was visiting at a house on Beal Street, which is some distance west of the railroad. She left there at about 9:15 intending to take a [460] train for Winthrop Centre which was due. to arrive at Ingalls station at 9:24. When last seen alive she had turned from Beal into Lincoln Street, and was about three hundred feet west of the railroad crossing. At 9:25 a train for Boston, running on the track nearest said walk, arrived at Ingalls station and departed. The train for Winthrop on the other (westerly) track did not arrive until 9:26 or later. Some persons who had left that train, and were walking toward the Lincoln Street crossing, found the body of the intestate. Even assuming in favor of the plaintiff that his intestate had the rights of a passenger, and that he was entitled to go to the jury on the issue of her due care by virtue of G. L. c. 231, § 85, the record fails to disclose any evidence which would warrant a finding that her death was caused by the negligence of the defendant. The direct testimony is all to the contrary. The crossing tender, who lowered the gates on the approach of the trains, and later raised them, said that he looked around and saw no one. The engineer and fireman on the Boston bound train testified that the bell on the engine was rung as they approached the station; that the headlight was burning at the time, and lighted a space forty feet ahead, and two feet outside each rail; and that both were watching ahead and saw no one near the track at the point where the deceased was found. According to the fireman’s testimony, he was leaning out of the window on the right hand side, and looking ahead; but he saw no one on the path for the entire, distance from the Lincoln Street crossing to the steps opposite the station. They were informed of the accident when they reached the terminal at East Boston; and then examined the engine all over to see if there were any marks or blood on it, but found none. The conductor testified that while the train was at the station he stood on the path, with his lantern, and looked around, but did not see the body of the deceased. The extinguishing of the electric light north of Lincoln Street at seven o’clock, in pursuance of directions received from the fuel administrator, does not appear to have any connection with the accident. We are .left entirely to guesswork when we attempt to determine when and where the deceased crossed the tracks; and what her conduct was between 9:15, when she was seen at the corner of Beal and Lincoln streets, three hundred feet west of the crossing, [461] and 9:30 when she was found on the walk east of the tracks, and not near the place where she would board a train for Winthrop Centre. Whether she was struck by a passing train while crossing the tracks, or fell against the Boston bound train in a moment of confusion, or came to her fatal injury in some other of various conceivable ways, is a matter of conjecture. The record discloses no facts from which a jury reasonably could infer that she came to her death by reason of negligence on the part of the defendant or its employees. Moynihan v. Boston & Maine Railroad, 227 Mass. 180. Jabbour v. Central Construction Co. 238 Mass. 453. Exceptions overruled.