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

80 N.E. 219, 194 Mass. 181, 1907 Mass. LEXIS 938

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1907
• Status: Published

Opinion

Braley, J.

Upon the undisputed evidence the plaintiff’s intestate had turned from the side of the highway where it crossed the railroad track, and having passed within the defendant’s location was walking in the middle of the roadbed, when she was struck and instantly killed by a passing train. At common law, not having survived the injury, no action could be maintained, and the plaintiff relies on the provisions of R. L. c. 111, §§ 267, 268. Smith v. Thomson-Houston Electric Co. 188 Mass. 371, 376. But as the decedent’s life was not lost by a collision with the defendant’s engine or cars at a grade crossing the remedy given by § 268 is inapplicable, and it is expressly provided by § 267, that if at the time of death the person killed is walking on its road contrary to law the corporation shall not be liable.

Even without such a statutory provision, the decedent being a trespasser, the plaintiff could not recover unless wilful or reckless misconduct on the part of the defendant’s engineer was shown, and of this there is no evidence. Johnson v. Boston & Maine Railroad, 125 Mass. 75. Wright v. Boston Albany Railroad, 142 Mass. 296. McCreary v. Boston Maine Railroad, 153 Mass. 300, 304.

It consequently becomes unnecessary to consider the other questions argued.

Exceptions overruled.