Mabel Johnson Smith v. Boston & Maine

The defendant contends that the evidence adduced at this trial differs from that before the court at the previous transfer in that it now definitely appears that the tracks between Rockingham Junction and Newfields had been rock ballasted a few months prior to the accident, and that thereafter, due to the difficulty in walking upon such ballast, the right of way had not been used by pedestrians generally but only by causal trespassers. As a consequence of this evidence the defendant argues that it was under no obligation to anticipate trespassers upon its right of way during the evening of January 6, 1928, and, since the plaintiff and the decedent were not seen in time for saving action, that there can be no liability because no duty of care was owing to them.