Kelley v. Boston, Revere Beach & Lynn Railroad

Wait, J.

The plaintiff was injured at a-grade crossing in Lynn as he was purposing to take a train of the defendant which was standing or just beginning to move toward Boston after taking passengers aboard. He was struck by a train coming from Boston and coasting into the station at the crossing as the Boston bound train was leaving. He had alighted from an automobile on Commercial Street and walked toward the station where he saw the Boston bound *470 train drawing in on the track farthest away from him. He saw the train stop with the first car across Commercial Street. The platform gates of the cars were open on the side toward him and away from the station building. He saw the crossing gates lowered across Commercial Street between himself and the train. When about fifteen feet from the gates he gave, as he testified, “a casual glance” toward Boston but saw no train coming. He passed under the crossing gates, kept on toward the train he was intending to take, and was hit, partly at least, from behind by the approaching train. The gate tender was on the opposite side of the crossing.

The judge was right in ordering the entry of a verdict for the defendant under leave reserved pursuant to G. L. c. 231, § 120. Even if an invitation to take the train from the wrong side might in some circumstances be implied owing to ■ the open gates of the car platform (see Palmer v. Boston & Maine Railroad, 227 Mass. 493, 497 ), a point not decided, we think that here any invitation to the plaintiff is precluded by the lowered crossing gates. They shut persons away from the train. There is no circumstance indicating an invitation to passers on the street and beyond those gates to get upon the train or enter upon the station premises. See Clark v. Boston & Maine Railroad, 164 Mass. 434 . The plaintiff knew they were down even if he could walk under them. The plaintiff was not a passenger or rightfully upon the station premises. Nor was he in the exercise of due care. His glance toward Boston must have been careless. The coming train must have been in sight. One who in disregard of warning gates walks upon a crossing must use care commensurate with the danger. Slattery v. New York, New Haven & Hartford Railroad, 203 Mass. 453 .

Exceptions overruled.