Murphy v. Boston & Maine Railroad

Braley, J.

The ruling that the plaintiff could not recover having been made on the opening of counsel, his statements are to be treated not only as if put in evidence but as being true. Berry v. Newton & Boston Street Railway, 209 Mass. 100 .

It is alleged in each count of the declaration, that at the time of the intestate’s death he was a passenger. If the jury could have so found, the further allegation of his due care was unnecessary, and could be treated as immaterial." St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392. Merrill v. Eastern Railroad, 139 Mass. 252 .

But it appears that while in the car the intestate was so intoxicated as to be unable to tender his fare, or the ticket which the jury could find he had purchased. By reason of these conditions, even if he was unable to take suitable precautions to avoid physical injury, the defendant had the right to remove him from the train at the next station using, if necessary, reasonable but not excessive force. St. 1906, c. 463, Part I, §§ 53, 64. Jackson v. Old Colony Street Railway, 206 Mass. 477 , and cases cited.

The intestate upon removal having ceased to be a passenger, some affirmative proof of his due care was required under the statute. St. 1906, c. 463, Part I, § 63. St. 1907, c. 392. Hudson v. Lynn & Boston Railroad, 178 Mass. 64, 66 ; S. C. 185 Mass. 510 . When last seen alive he was in the station in a position of security from the danger of passing trains, and his subsequent movements until his lifeless body was found on the railroad track were not observed by any one, nor are there enough circumstances dis *180 closed to furnish even a conjecture as to his conduct. Corcoran v. Boston & Albany Railroad, 133 Mass. 507 . French v. Sabin, 202 Mass. 240 . Taylor v. Pierce Brothers, 213 Mass. 247 .

It is, however, further averred, that his death was caused by the “wanton and reckless acts and negligence of the defendant,” and, if this was shown by the evidence, its liability follows. Yancey v. Boston Elevated Railway, 205 Mass. 162 . Menut v. Boston & Maine Railroad, 207 Mass. 12, 18, 19 . But there is no contention that the station to which the intestate was removed was not reasonably safe. The defendant’s servants, while bound because of his. obvious disability to leave him in a place within the station where if he had remained his personal safety would not have been endangered, were under no obligation to escort him from the premises to the public ways, or to take further measures for his protection. Black v. New York, New Haven, & Hartford Railroad, 193 Mass. 448 . The plaintiff having failed to offer any evidence from which the jury would have been warranted in finding that the defendant’s negligence was the proximate cause of death, the verdict should stand.

Exceptions overruled.