Winnisimmet Company v. Grueby.

purpose, to purchase or otherwise take the land of William H. Grueby; that in said statute it was provided that if the petitioners could not obtain the land by agreement with the owner, they should pay therefor such damages as should be assessed by the board of street commissioners of the city of Boston; that either party, if dissatisfied with the award of the commissioners, might apply to the Superior Court for a jury; and that thereupon the same proceedings should be had as in the case of estimating and enforcing payment of damages for laying out highways in Boston.

The petition further alleged that the petitioners were unable to obtain the land by an agreement with the respondent; that they took it under the provisions of the statute; that the respondent applied to the board of street commissioners to assess damages for the taking; that the board awarded $25,000 as damages; and that the petitioners were dissatisfied with this estimate. The prayer was for a jury in accordance with the provisions of the

statute.

At the trial in the Superior Court, before Lord, J., the petitioners claimed the right to open and close, but the judge ruled that the respondent had that right.

Thomas S. Foster, a witness called by the petitioners, testified that he occupied the next wharf but one to the respondent's wharf, which was the lot of land in question, and that the wharf occupied by him had recently been offered to him for sale. He was then asked at what price it was offered to him. The defendant objected, and the judge, as it appeared that the witness did not buy the wharf, refused to allow him to answer the question. Evidence of actual sales of wharf property in the neighborhood was admitted on both sides without exception.

The jury assessed damages in the sum of $20,533, and the petitioners alleged exceptions.

G. W. Baldwin, for the petitioners. 1. Under the former practice of the court, the party claiming unliquidated damages had, it is true, the right to open and close; Connecticut River Railroad Co. v. Clapp, 1 Cush. 569; but the test applied was the burden of proof, and that test no longer exists in this Commonwealth. Page v. Osgood, 2 Gray, 260. Spaulding v. Hood, 8 Cush. €02

Winnisimmet Company v. Grueby.

The uniform rule is now to give the right to open and close to the plaintiff. Unless this rule is inflexible it is of little value.

2. The evidence of the price at which the neighboring wharf was offered to Foster was admissible. Wyman v. Lexington & West Cambridge Railroad Co. 13 Met. 316, 327. Fennerstein's Champagne, 3 Wall. 145. It is true that evidence that an offer had been made to buy land at a certain price was rejected in Fowler v. County Commissioners, 6 Allen, 92; but an unaccepted offer to sell, and an unaccepted offer to buy, stand upon very different footings. An owner who desires to sell land is not likely to demand less than its value. If such evidence were offered for the purpose of increasing the valuation of neighboring property, it might be inadmissible; but for the purpose of diminishing that valuation, it is unobjectionable.

G. W. Phillips, for the respondent. 1. The right to open and close belonged to the respondent. Connecticut River Railroad Co. v. Clapp, 1 Cush. 559, 563, is exactly like the case at bar. The decision was not rested upon the then existing rules of the Court of Common Pleas commented on in Robinson v. Hitchcock, 8 Met 64, and Spaulding v. Hood, 8 Cush. 602, and is therefore not affected by the abrogation of those rules. Page v. Osgood, 2 Gray, 260. The respondent is the real plaintiff. The petition for a jury is in the nature of an appeal.

2. The question to the witness Foster as to the price at which the wharf was offered to him, was rightly ruled to be inadmissible. Such evidence has been repeatedly held incompetent. Davis v. Charles River Branch Railroad Co. 11 Cush. 506. Wyman 7. Lexington & West Cambridge Railroad Co. 13 Met. 316, 326. Shattuck v. Stoneham Branch Railroad Co. 6 Allen, 115. Fowler . County Commissioners, 6 Allen, 92, 96. Tufts v. Charlestown, 4 Gray, 537. Dickenson v. Fitchburg, 13 Gray, 546. Chapin v. Boston & Providence Railroad Co. 6 Cush. 422. White v. Fitchburg Railroad Co. 4 Cush. 440.

BY THE COURT. 1. The petition in this case is in the nature of an appeal from the award of the board of street commissioners assessing damages in favor of the landowner, for his land taken by the petitioners. Grueby, the landowner, filed his application

Tyrrell v. Eastern Railroad Company.

to the street commissioners to assess his damages. He was the original actor or plaintiff, and had the right to open and close, both before the commissioners and at the trial before a jury in the Superior Court.

2. Evidence of an offer to sell land in the vicinity, not accepted was inadmissible.

Exceptions overruled.

JOHN TYRRELL vs. EASTERN RAILROAD COMPANY.

At the crossing of a railroad by a highway, the railroad company placed a gate consisting of a pole about thirty-five feet long, which, when railroad trains were passing, was swung from one side of the highway to a post on the other. As a train was approaching the crossing, a heavy runaway team came along the highway, dashed against the pole which was swung across the highway, and broke it or loosened it from its fastening. The pole swung obliquely across the railroad track and the whole or a part of it was driven into a car of the railroad train which had not slackened its speed. Held, in an action against the company by a passenger in the car for injuries received from the pole, that evidence of the above facts would warrant a jury in finding that the accident was caused by the defendants' negligence.

TORT to recover for injuries caused to the plaintiff while a passenger on the defendants' railroad by reason of a gate or pole, maintained by the defendants at the crossing of a highway "for the better protection of their trains from horses, carriages and other obstacles," being thrown towards and entering the car in which the plaintiff was seated, and striking and injuring him. The declaration alleged that the accident was caused by the defendants' negligence. At the trial in the Superior Court, before Devens, J., the following facts appeared :

The accident occurred at a place near Prison Point in Charlestown, where the track of the defendants' railroad approaches Boston from the north over a bridge built on piles, and crosses, nearly at right angles, a causeway leading from Charlestown to Cambridge. This causeway has water on both sides of it, and is visible from the railroad for a distance of seven hundred and fifty feet. At the intersection of the railroad and the causeway, to the west of the former and the north of the latter, there stands a small house, one story high, extending about seventeen feet along the causeway and thirty-five feet along the railroad.

Tyrrell v. Eastern Railroad Company.

At the crossing was a gate, pole, or bar, consisting of a spar about thirty-five feet in length. It hung by a hinge from a high, upright post on the southerly side of the causeway, and extended across the way to a post about four feet high standing on the other side; when trains were not approaching, the pole was swung across the railroad. Both posts stood about nine feet from the nearest rail of the defendants' track. The pole was supported by iron stays or guys extending from the large post, and joining the pole about ten and twenty feet from the further free end, at which end the bar was about three inches in diameter; from thence it increased gradually in diameter. The defendants' railroad crossed the Fitchburg Railroad at a point six hundred feet from the crossing in question.

The plaintiff testified that on the morning of November 17, 1870, as he was travelling in a train on the defendants' railroad from Charlestown to Boston, a pole came in at the forward corner of the car in which the plaintiff was seated, and struck and injured him; and that the pole was broken at one end, and was about twenty-five feet long.

Charles Eaton testified that he was in the same car with the plaintiff at the time of the accident; that after the train crossed the Fitchburg Railroad he saw a runaway team on the highway about the same distance from the crossing of the highway as the train was, and going at about the same rate, as the train had just started from its stop at the crossing of the Fitchburg Railroad; that the team was a very heavy one drawn by very powerful horses; that he thought there would be an accident and started for the door; but that before he got out, the pole entered the forward corner of the car; that the free end of the pole entered first; that the piece which entered was nearly as long as the car; that it brought some of the guys with it; and that the car went from twenty to fifty feet after it was struck before it stopped.

Another witness, Edwin O. Wilkinson, gave testimony similar to that of Eaton.

J. Irving McGee testified that he saw the team coming along the causeway; that the team was very heavy and the horses very powerful; that the near horse made a leap towards the gate, and

Tyrrell v. Eastern Railroad Company.

struck it about fifteen feet from the short post; that he did not know that the horse's feet went over the gate; that he thought the horse came down so that his breast shoved up against the gate; that the gate swung in and struck the tender of the engine, and ran along the edge of the tender and into the front corner of the car; and that he did not think the horse broke the pole, but that the pole came off the latch when the horse came in contact with it. On cross-examination he testified that he thought the pole must have been broken before it entered the car.

There was also evidence that the pole, when swung across the road, rested in a catch in the short post like a latch in the door; that it caught on this latch of itself when swung towards it; and that when the gate-tender wished to free the pole from the catch, he jerked a piece of iron hanging to one of the guys at the butt end of the pole, and the spring of the pole would throw it out of the catch.

There was evidence that no whistle or danger signal was sounded on the train in which the plaintiff was a passenger, and that brakes were not applied to stop the train.

Upon this evidence, which was all that was material, except on the amount of damages, the case was reported, by consent of parties, for the consideration of this court. If upon the evidence reported the plaintiff was entitled to go to the jury, and a verdict in his favor could be sustained, as matter of law, then the cause to stand for trial; otherwise, judgment to be rendered for the defendants.

R. D. Smith, for the plaintiff. Whether or not injury to a passenger is prima facie evidence of negligence on the part of the carrier, as held in Carpue v. London & Brighton Railway Co. 5 Q. B. 747; Transportation Co. v. Downer, 11 Wall. 129, 134; Burke v. Manchester, Sheffield & Lincolnshire Railway Co. 22 Law T. (N. S.) 442; Galena & Chicago Union Railroad Co. v. Yarwood, 17 Ill. 509; the carrier is at any rate bound to guard the passenger from every danger which extreme vigilance can prevent. Ingalls v. Bills, 9 Met. 1. Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co. 97 Mass. 361; 100 Mass. 84. Smith v. New York & Harlem Railroad, 19 N. Y. 127.