Jennings v. Fitchburg Railroad

Morton, C. J.

The defendant corporation is authorized to maintain a bridge across Charles River, having two draws for the safe and convenient passage of vessels, and is required to “ keep the draws in good repair, and open the same, and afford all proper accommodation to vessels having occasion to pass the same by day or night.” St. 1847, c. 200. St. 1869, c. 352. In 1855 a general law was passed “ regulating the passing of vessels through railroad drawbridges,” and its provisions have been substantially continued to the present time, and are now found in the Public Statutes. St. 1855, c. 434. Pub. Sts. c. 112, §§ 148-155.

We must look to these provisions to ascertain the rights and duties of the railroad corporation, and of the owners or masters of vessels who have occasion to use the draw. The railroad company is required to appoint a competent superintendent, who shall have charge of the draw, shall at all hours of the day and night be ready to open it, shall decide in what order vessels are to pass, and furnish proper facilities for such passing, allowing a reasonable time for vessels to pass, having regard to the convenient and secure passage of engines and trains. But the statute contains the provision that “ a railroad train shall be allowed fifteen minutes to cross a draw before and after it is due by its time-table, and any approaching train shall be allowed a further reasonable time to pass.” Pub. Sts. c. 112, § 150. This is an important provision, designed to guard the safety of passengers on the railroad. By necessary implication, it forbids the opening of the draw at any time within fifteen minutes of the time when a train is due by its time-table, and within fifteen minutes after, unless the train which is due passes the draw. If within *623 that time the master of a vessel applies to pass the draw, it is the duty of the superintendent to refuse to open it. He could not open it without violating the statute, and exposing himself and the railroad company to severe penalties.

In the case at bar, the declaration alleges that the plaintiff's vessel, having occasion to use the defendant’s draw, by some negligence or accident for which the defendants were not responsible got her stern caught underneath the drawbridge, which was closed, and as the tide was rising she was thereby sunk; and that the master requested the superintendent to open the draw, and he refused. It does not allege in any way that this demand was made at a time when the owner or master of the vessel had a right to have the draw open. For aught that appears, it may have been made within fifteen minutes of the arrival of an approaching train, when the superintendent was forbidden by the statute to open the draw. The declaration does not contain sufficient averments to show that it was the duty of the superintendent to comply with the request and open the draw. It therefore shows no negligence for which the defendant is liable. Judgment, affirmed.