NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
25-P-14 Appeals Court
MARK LAYMAN vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.1
No. 25-P-14.
Suffolk. October 3, 2025. – April 6, 2026.
Present: Rubin, Shin, & Singh, JJ.
Massachusetts Bay Transportation Authority. Railroad. Statute, Construction. Practice, Civil, Standing, Action in nature of mandamus, Motion to dismiss.
Civil action commenced in the Superior Court Department on March 30, 2023.
A motion to dismiss was heard by David A. Deakin, J., and a motion to alter or amend the judgment was considered by him.
Peter A. Brown (Nathan G. Andrews also present) for the plaintiff. Jennifer M. Lee Sage (John J. Bonistalli also present) for Massachusetts Bay Transportation Authority.
1 Department of Public Utilities (department). A stipulation of dismissal entered as to the claims against the department, leaving the Massachusetts Bay Transportation Authority as the only defendant. 2
RUBIN, J. The plaintiff alleges that in its operation of
its commuter rail trains, the Massachusetts Bay Transportation
Authority (MBTA) is under a clear and unequivocal duty to sound
both bells and whistles at all at-grade crossings, which the
MBTA concededly does not do. Not only is this the gravamen of
the complaint, it is also the basis for the plaintiff's claim of
standing to sue, which he avers he is entitled to do under the
"public right doctrine." This doctrine allows a citizen to
bring an action for relief in the nature of mandamus, to procure
the enforcement of a public duty. See Tax Equity Alliance for
Mass. v. Commissioner of Revenue, 423 Mass. 708, 714 (1996). A
judge of the Superior Court concluded that the plaintiff lacked
standing under this doctrine, dismissed the plaintiff's
complaint, and denied the plaintiff's motion to alter or amend
the judgment. The plaintiff now appeals.
The plaintiff argues that a public duty is imposed on the
MBTA by G. L. c. 160, § 138 (§ 138). That statute provides,
"Every railroad corporation shall cause a bell of at least thirty-five pounds in weight, and a whistle, to be placed on each locomotive engine passing upon its railroad; and such bell shall be rung or at least three separate and distinct blasts of such whistle sounded at the distance of at least eighty rods from the place where the railroad crosses upon the same level any public way or traveled place over which a signboard is required to be maintained as provided in sections one hundred and forty and one hundred and forty-one; and such bell shall be rung or such whistle sounded continuously or alternately until the engine has crossed such way or traveled place." 3
The plaintiff argues that there was a public safety purpose
motivating the enactment of this statute; that the whistle
provides dramatically more safety to pedestrians than the bell;
and that lives will be saved if the whistle is used at every
crossing, rather than only the bell. Indeed, he asserts that
"[t]he MBTA has publicly acknowledged that sounding the train
whistle is a vital warning and that doing so saves lives." For
purposes of our decision, we accept the truth of these
assertions.
Nonetheless, the plain language of the statute states that
either the bell shall be rung or the whistle sounded. It does
not say that the whistle must be sounded. Its public safety
purpose does not change that. Nor, as the plaintiff argues,
does this plain language reading contradict G. L. c. 160, § 139
(§ 139), which provides a mechanism by which, on petition, the
Department of Public Utilities may "forbid or regulate the
sounding of whistles on the locomotives of [railroad
corporations] at any specified grade crossings of the tracks of
such corporation with any public way." This language does not
imply that there is otherwise a mandate to sound those whistles
at all grade crossings. Rather, § 139 creates a mechanism to
remove the railroad's ability in certain circumstances to
exercise its discretion to do so. 4
The plaintiff raises several arguments in support of his
contention that "or" in this case should be read to mean "and."
None is availing.
The plaintiff notes that the 1874 version of § 138 stated,
"such bell shall be rung or such whistle sounded," followed by
"either one or the other." St. 1874, c. 372, § 123. He argues
that the removal of this latter phrase from the statute means
that both must now be rung and sounded. See St. 1882, c. 112,
§ 163. Of course, we have no information as to why this
language was struck -- indeed, it might have been due to
redundancy -- but it does not matter. The word "or" has
remained in the statute for over 150 years. There is no
suggestion that "or" somehow came to mean "and" during that
time.
The plaintiff cites some instances in which the statute was
described as requiring both the ringing of a bell and the
sounding of a whistle. Thus, for example, the bill summary for
a piece of unpassed legislation -- House Bill No. 2264 (1999) --
stated that § 138 "requires three separate soundings of a
whistle . . . and must also sound the bell intermittently until
the train has cleared the crossing." This language, in a mere
summary of what is, in any event, an unpassed bill, has no
bearing on our construction of the language in the statute. 5
The plaintiff argues that in Boyd v. National R.R.
Passenger Corp., 446 Mass. 540, 550 n.13 (2006), the Supreme
Judicial Court described § 138 as "requir[ing]" "[t]he use of an
engine-mounted horn." Boyd, however, was a case about the death
of a fifteen year old child struck by a commuter rail train.
The engineer of the train stated that he had sounded his horn
before the impact. In Boyd, id. at 550-551, the plaintiff's
claim was that the engineer had failed to sound the train's horn
at least eighty rods (1,320 feet) from the grade crossing.
There was no suggestion that the engineer had been ringing the
bell on the train instead of sounding the horn, so whether the
bell sufficed to meet the requirements of § 138 in that context
was not a question before the court. Given this posture, even
if the language of the opinion could be read as a statement that
a bell alone would not have sufficed to meet the requirements of
the statute, it was not necessary to the decision in the case,
and therefore is not an authoritative construction of the
statute -- the full text of which, including of course the word
"or," was quoted by the Supreme Judicial Court.
The plaintiff spends some of his brief arguing that we
should follow Anderson v. Attorney Gen., 479 Mass. 780, 791-792
(2018), which he characterizes as reading the word "or" to mean
"and." That is a mischaracterization of the court's opinion in
that case. There, the court construed the language of art. 48, 6
The Initiative, II, § 3, of the Amendments to the Massachusetts
Constitution, as amended by art. 74 of the Amendments. See
Anderson, supra at 786.
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
25-P-14 Appeals Court
MARK LAYMAN vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.1
No. 25-P-14.
Suffolk. October 3, 2025. – April 6, 2026.
Present: Rubin, Shin, & Singh, JJ.
Massachusetts Bay Transportation Authority. Railroad. Statute, Construction. Practice, Civil, Standing, Action in nature of mandamus, Motion to dismiss.
Civil action commenced in the Superior Court Department on March 30, 2023.
A motion to dismiss was heard by David A. Deakin, J., and a motion to alter or amend the judgment was considered by him.
Peter A. Brown (Nathan G. Andrews also present) for the plaintiff. Jennifer M. Lee Sage (John J. Bonistalli also present) for Massachusetts Bay Transportation Authority.
1 Department of Public Utilities (department). A stipulation of dismissal entered as to the claims against the department, leaving the Massachusetts Bay Transportation Authority as the only defendant. 2
RUBIN, J. The plaintiff alleges that in its operation of
its commuter rail trains, the Massachusetts Bay Transportation
Authority (MBTA) is under a clear and unequivocal duty to sound
both bells and whistles at all at-grade crossings, which the
MBTA concededly does not do. Not only is this the gravamen of
the complaint, it is also the basis for the plaintiff's claim of
standing to sue, which he avers he is entitled to do under the
"public right doctrine." This doctrine allows a citizen to
bring an action for relief in the nature of mandamus, to procure
the enforcement of a public duty. See Tax Equity Alliance for
Mass. v. Commissioner of Revenue, 423 Mass. 708, 714 (1996). A
judge of the Superior Court concluded that the plaintiff lacked
standing under this doctrine, dismissed the plaintiff's
complaint, and denied the plaintiff's motion to alter or amend
the judgment. The plaintiff now appeals.
The plaintiff argues that a public duty is imposed on the
MBTA by G. L. c. 160, § 138 (§ 138). That statute provides,
"Every railroad corporation shall cause a bell of at least thirty-five pounds in weight, and a whistle, to be placed on each locomotive engine passing upon its railroad; and such bell shall be rung or at least three separate and distinct blasts of such whistle sounded at the distance of at least eighty rods from the place where the railroad crosses upon the same level any public way or traveled place over which a signboard is required to be maintained as provided in sections one hundred and forty and one hundred and forty-one; and such bell shall be rung or such whistle sounded continuously or alternately until the engine has crossed such way or traveled place." 3
The plaintiff argues that there was a public safety purpose
motivating the enactment of this statute; that the whistle
provides dramatically more safety to pedestrians than the bell;
and that lives will be saved if the whistle is used at every
crossing, rather than only the bell. Indeed, he asserts that
"[t]he MBTA has publicly acknowledged that sounding the train
whistle is a vital warning and that doing so saves lives." For
purposes of our decision, we accept the truth of these
assertions.
Nonetheless, the plain language of the statute states that
either the bell shall be rung or the whistle sounded. It does
not say that the whistle must be sounded. Its public safety
purpose does not change that. Nor, as the plaintiff argues,
does this plain language reading contradict G. L. c. 160, § 139
(§ 139), which provides a mechanism by which, on petition, the
Department of Public Utilities may "forbid or regulate the
sounding of whistles on the locomotives of [railroad
corporations] at any specified grade crossings of the tracks of
such corporation with any public way." This language does not
imply that there is otherwise a mandate to sound those whistles
at all grade crossings. Rather, § 139 creates a mechanism to
remove the railroad's ability in certain circumstances to
exercise its discretion to do so. 4
The plaintiff raises several arguments in support of his
contention that "or" in this case should be read to mean "and."
None is availing.
The plaintiff notes that the 1874 version of § 138 stated,
"such bell shall be rung or such whistle sounded," followed by
"either one or the other." St. 1874, c. 372, § 123. He argues
that the removal of this latter phrase from the statute means
that both must now be rung and sounded. See St. 1882, c. 112,
§ 163. Of course, we have no information as to why this
language was struck -- indeed, it might have been due to
redundancy -- but it does not matter. The word "or" has
remained in the statute for over 150 years. There is no
suggestion that "or" somehow came to mean "and" during that
time.
The plaintiff cites some instances in which the statute was
described as requiring both the ringing of a bell and the
sounding of a whistle. Thus, for example, the bill summary for
a piece of unpassed legislation -- House Bill No. 2264 (1999) --
stated that § 138 "requires three separate soundings of a
whistle . . . and must also sound the bell intermittently until
the train has cleared the crossing." This language, in a mere
summary of what is, in any event, an unpassed bill, has no
bearing on our construction of the language in the statute. 5
The plaintiff argues that in Boyd v. National R.R.
Passenger Corp., 446 Mass. 540, 550 n.13 (2006), the Supreme
Judicial Court described § 138 as "requir[ing]" "[t]he use of an
engine-mounted horn." Boyd, however, was a case about the death
of a fifteen year old child struck by a commuter rail train.
The engineer of the train stated that he had sounded his horn
before the impact. In Boyd, id. at 550-551, the plaintiff's
claim was that the engineer had failed to sound the train's horn
at least eighty rods (1,320 feet) from the grade crossing.
There was no suggestion that the engineer had been ringing the
bell on the train instead of sounding the horn, so whether the
bell sufficed to meet the requirements of § 138 in that context
was not a question before the court. Given this posture, even
if the language of the opinion could be read as a statement that
a bell alone would not have sufficed to meet the requirements of
the statute, it was not necessary to the decision in the case,
and therefore is not an authoritative construction of the
statute -- the full text of which, including of course the word
"or," was quoted by the Supreme Judicial Court.
The plaintiff spends some of his brief arguing that we
should follow Anderson v. Attorney Gen., 479 Mass. 780, 791-792
(2018), which he characterizes as reading the word "or" to mean
"and." That is a mischaracterization of the court's opinion in
that case. There, the court construed the language of art. 48, 6
The Initiative, II, § 3, of the Amendments to the Massachusetts
Constitution, as amended by art. 74 of the Amendments. See
Anderson, supra at 786. That article provides the Attorney
General must certify that any petition properly signed and
submitted to her "contain[] only subjects . . . which are
related or which are mutually dependent." Art. 48, The
Initiative, II, § 3, as amended by art. 74. In that context,
the court said, "[i]t is fundamental to statutory construction
that the word 'or' is disjunctive 'unless the context and the
main purpose of all the words demand otherwise'" (citation
omitted). Anderson, supra at 792. The court concluded that
"or" was not being used to create a disjunctive, but to signal a
"rephras[ing]" or "synonym" of the word that came before it,
"related" (citations omitted). Id. The structure of the
statutory sentence in this case, which places two different
things on either side of the word "or" -– the ringing of the
bell and the sounding of the horn -– forecloses any such reading
here.
The plaintiff appears to have genuine concern for
pedestrian safety. But no argument raised by the plaintiff
gives this court authority to rewrite the clear language of this
statute, language that was adopted over 150 years ago. If the
plaintiff seeks to change that, his remedy lies with the
Legislature. 7
Because the statute does not create the public duty alleged
by the plaintiff, he lacks standing to bring this suit. The
judgment, and the order denying the motion to alter or amend the
judgment, therefore are affirmed.2
So ordered.
2 Our conclusion forecloses the need to address any other issues raised in the case. MBTA's request for damages and double fees is denied.