Massachusetts Central Railroad v. Boston, Clinton & Fitchburg Railroad

A railroad corporation, across and twenty feet above whose road another railroad is laid out, cannot recover damages for the expense of maintaining a flagman at the crossing of a highway, alleged to be necessary to guard against the greater liability to accidents occasioned by the obstruction of the view along its railroad, by means of the abutments of the new railroad of the other corporation.

Petition to the Superior Court under the St. of 1873, c. 261, for a jury to revise an award of damages made by the county commissioners to the respondent, upon its petition, by reason of the construction of the railroad of the petitioner. . At the trial in the Superior Court, before Rockwell, J., it was admitted by the petitioner that it had taken for its railroad a certain tract of land belonging to the respondent, and it was agreed that, damages should be awarded for the same to the amount of one hundred and eight dollars. The railroad of the respondent had been in operation several years before the location of the petitioner’s railroad, and crossed at grade a certain highway in the town of Berlin. The petitioner located its road over and across the Boston, Clinton and Fitchburg Railroad, near said grade crossing, and over and across the highway, and established the grade of its railroad about twenty feet above the railroad of the respondent and above the highway, crossing the railroad and highway by means of a bridge resting upon stone piers and abutments; one or more of the piers being upon the respondent’s land near the grade crossing. The respondent offered evidence, the form of which evidence, if competent, was not objected to, as follows: Until the erection of the piers by the petitioner, the respondent had operated its railroad, and had run trains across the grade crossing safely and without accident. The crossing was a reasonably safe one, and the view up and down the respondent’s railroad was free and unobstructed to travellers upon the highway when approaching the crossing. No flagman had ever been employed at the crossing, and there had been no necessity for a flagman at the point, and no request had been made by any one for such flagman. By the erection of the piers the view of travellers on the highway up and down the respondent’s railroad was greatly obstructed, and the crossing was thereby rendered unsafe and dangerous without a flagman, both to the public and to the respondent in the use of its road. The selectmen of Berlin by due process of law requested the respondent in writing to station a flagman at the crossing, stating in their request that the crossing had been rendered unsafe by reason of the erection of the piers, and that their request was made by reason thereof. Upon application to the county commissioners by said selectmen, the commissioners, after due notice to the respondent, but without notice to the present petitioner, decided that the stationing of such flagman was necessary for the security of the public, and the respondent thereupon, before the filing of the original petition to the county commissioners for the assessment of damages, stationed a flagman at the crossing and has ever since maintained one at great expense, and will be compelled to employ a flagman constantly in the future, by reason of the erection and maintenance of the piers. The respondent sought to recover damages by reason of the necessity of the employment of the flagman. The above facts offered in evidence were alleged in the petition of the respondent to the county commissioners, and were proved to their satisfaction, and they awarded damages therefor. The petitioner objected to the admission of any and all of the above evidence, on the ground that it was immaterial and incompetent, and contended that the petitioner was not liable to compensate the respondent for the alleged injury, and that the same did not constitute an element of damages. The presiding judge so ruled and excluded the whole of the testimony, and the parties thereupon submitted to a verdict of the jury, awarding damages to the respondent, to the amount of $108, the agreed value of said land. The respondent alleged exceptions.