Harris v. Boston & Maine Railroad

98 N.E. 578, 211 Mass. 573, 1912 Mass. LEXIS 845

• Court: Massachusetts Supreme Judicial Court
• Decided: May 22, 1912
• Status: Published

Opinion

DeCourcy, J.

By statute there was imposed upon the defendant the duty of keeping in repair the portion of Railroad Street that was crossed by the railroad at grade. R. L. c. 111, § 129. Scanlan v. Boston, 140 Mass. 84. Mack v. Boston & Albany Railroad, 164 Mass. 393.

It being agreed that the defendant was operating a railroad across the street lawfully, its tracks, when properly constructed and maintained, cannot be a defect for which it is liable, even though they may be obstacles to travel. Lawrence v. New Bedford, 160 Mass. 227. Fowler v. Gardner, 169 Mass. 505. There was evidence that at the place of the accident the space between the rail and the planking was from two and a half to three inches, and that there was “a sort of cutting along the edge of the planking, a kind of slivering, as if the flange of a wheel might have slipped along and worn the planking off.” This evidence, although slight, made it a question of fact for the jury to decide whether there was a defect in the way. Gillett v. Western Railroad, 8 Allen, 560.

The defendant, however, was not obliged to keep this portion of the way in repair, except for the purposes of travel; and the plaintiff was not a traveller within the established meaning of that word in the statute creating liability for defects in highways. He was using the way simply as a playground and was racing in competition with his companipns when his foot was caught between the rail and the planting. However we might decide if the question were an open one, the case is governed by Blodgett v. Boston, 8 Allen, 237, and Tighe v. Lowell, 119 Mass. 472; and the presiding judge rightly directed a verdict for the defendant.

Exceptions overruled.