Dillon v. Connecticut River Railroad

Holmes, J.

This is an action, under the Pub. Sts. c. 112, § 212, for causing the death of the plaintiff’s intestate, Dacey. Dacey was killed by a train running off the track while he was in a water-closet, which there was evidence tending to show to have been built without right within the defendant’s location. The jury were instructed that, if Dacey was a trespasser, the defendant owed him no duty beyond abstaining from reckless or wanton conduct toward him. The jury found for the defendant ; and the plaintiff excepted. If Dacey had been on the defendant’s track, there is no question that the ruling would have *479 been right. McCreary v. Boston & Maine Railroad, 153 Mass. 300 . The ground of the decision cited is that the statute does not abolish the common law rule embodied in the instruction, and that rule applies with equal force to trespassers anywhere within the location. Whether this construction of the statute be reached by a broad interpretation of the exception of people “ being upon its [the defendant’s] road contrary to law,” which qualifies the civil as well as the criminal liability, (see St. 1881, c. 199, § 1,) or by reading in an exception implied by common sense, does not matter for the purposes of this case. Compare Taylor v. Carew Manuf. Co. 143 Mass. 470, 471 ; Blodgett v. Boston, 8 Allen, 237 , 238. Exceptions overruled.