Maher v. Boston & A.R. Co‪.‬

RONAN, Justice. This is an action of tort to recover damages for the conscious suffering and death of the plaintiff's intestate on February 24, 1935, while a passenger on a special train, consisting of ten cars and running from Boston to Becket for the purpose of returning to a 'C. C. C.' camp, at Becket, young men who had enrolled in this camp and who had been on a three-day holiday over Washington's Birthday. It could have been found that the train swayed or lurched as it reached the Natick station, causing the decedent, who was passing from one car to another, to lose his balance and to fall or go out through an open door, which he had not opened, and strike against a fence that separated the track upon which the train was travelling from a branch track with such force as to break several pickets; that he was so severely injured he died in about six hours after the accident. The Judge, subject to the plaintiff's exception, directed a verdict for the defendant. There was evidence that the decedent came from the rear of the train and met one Gagne, who was seated in the third or fourth car from the rear, and, after talking with him, left the car by the forward door; that he then met Hanlon, with whom he sat for a few minutes, and, sometime after the train left the Newtonville station, the decedent got up and went forward. The plaintiff offered to show by Hanlon that, after the train left Trinity Place in Boston, and again after it left Newtonville, Hanlon felt a draft of cold air and noticed that the car door was open; but the Judge did not permit him to testify that on each occasion he found that the vestibule door was open, apparently for the reason that the evidence did not show that the decedent was near this door on this particular car at the time of the accident. We assume for the purpose of this decision that the evidence was admissible because its introduction in testimony would not change the result.