Favor v. Boston & Lowell Railroad

114 Mass. 350

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1874
• Status: Published

Opinion

Endicott, J.

Much of the evidence offered by the plaintiff was clearly incompetent, but the real question reported for de cisión arises upon the following facts : The plaintiff, while travel ling with his horse and wagon on Gorham Street in Lowell, passed under the bridge of the defendants’ railroad, which crosses Gorham Street, and while so doing, and in the exercise of due care, a train of the defendants passed over the bridge, and the plaintiff’s horse, frightened by the noise, became unmanageable, upset the wagon, and the plaintiff was injured. No signal or warning was given of the approach of the train to the bridge. It does not appear that the defendants were guilty of any special negligence, unless the failure to give a signal was negligence, but ran their train in the usual manner, making no more noise than generally attends the running of a railroad train. The only question, therefore, is, whether it was the duty of the defendants to' give notice or warning to travellers on the highway of the approach of the train to the bridge.

Where a railroad crosses a highway at grade, the law imposes upon it the duty of giving notice to travellers of the approach of its. trains. The statutes also prescribe certain signals to be given by the railroad at all crossings at grade. Gen. Sts. c. 63, § 84. St. 1862, c. 81. Mere compliance with the statute provisions is not sufficient, but the railroad is bound to use all such reasonable care, in addition to the statute requirements, as the circumstances of each case may seem to demand. Linfield v. Old Colony Railroad Co. 10 Cush. 562, 569. This rule applies because at grade crossings the traveller on the highway and the railroad enjoy a common privilege on the highway itself; and each must use such privilege with due regard to the safety and rights of the other. Shaw v. Boston & Worcester Railroad Co. 8 Gray, 45, 66. And as a train of cars is a dangerous power when in motion, and capable of doing great injury, a high degree of care is demanded of the railroad in controlling it, and some notice of its approach to the highway is required both by the rules of the common law and by statute.

But where a railroad crosses a highway by a bridge, it does not in common with the traveller have any privilege in or use of the highway itself. Though the track and the highway are near and adjacent to each other, they are entirely distinct and separate. The railroad has no rights in the highway, and consequently the same duties are not imposed upon it that are imposed when it passes over the highway itself in common with the traveller. It has the right to use its roadbed and bridge, as a railroad may use them, by running its trains at the common rate of speed, accompanied by the usual noise attendant upon such exercise of its rights. It is not bound by law to notify the traveller of its intention to use its bridge in the ordinary and usual manner. And no statute requires it to do so. However objectionable the customary noise of a railroad train may be to a traveller on the highway, or to persons living near the track, no question of care or legal responsibility is involved in the relation of the parties, and the railroad company, in doing that which it is authorized by law to do, is not guilty of a nuisance. It has the right to do lawful acts upon its own premises, and is not responsible for injurious consequences that may arise from such acts, unless the acts are negligently and improperly done. If the defendants in this case had done some aegligent act in the immediate vicinity of the highway, calculated to endanger the safety of travellers passing over it with horses, a rery different question would have been presented. But no evileuce is offered of such act, and the mere omission to give warn ing of the approach of the train is not such negligence that the plaintiff can maintain his action.

Judgment for the defendant.