Boyd v. National Railroad Passenger Corp.1/20/2005
ured person is a child. Jad v. Boston & Me. Corp., 26 Mass. App. Ct. 564, 570-571 (1988). Thus, in this case, the defendants' liability to the plaintiff for Kelly's wrongful death, predicated on their negligence, depends upon whether Kelly was on the railroad tracks "contrary to law."
Under Massachusetts law, it is a crime to be on railroad tracks except at an established crossing. G. L. c. 160, § 218. See Gage v. Westfield, 26 Mass. App. Ct. 681, 690 (1988). See also Beausoleil v. Massachusetts Bay Transp. Authy., 138 F. Supp. 2d 189, 197-198, 199 (D. Mass. 2001). The plaintiff argues that Kelly's presence on the tracks was not contrary to law, because she was on a highway or authorized grade crossing when she was struck, and the statute provides an exception in those circumstances. G. L. c. 160, § 218. We are unpersuaded by this argument, which appears to contravene common sense and the statutory purpose. General Laws c. 160, § 218, expressly prohibits all manner of trespass on railroad property and, implicitly, the presence of unauthorized persons when the approach of a train is imminent, i.e., when the gates are lowered blocking entrance to the crossing. See Gage v. Westfield, 26 Mass. App. Ct. at 690. See generally Dole v. Boston & Me. R.R., 308 Mass. 46, 50 (1941) ("It is well settled that a railroad in the operation of its trains has exclusive use of a grade crossing while they are passing over it") (citation omitted).
Violation of G. L. c. 160, § 218, suffices to implicate the railroad exception of the wrongful death statute. See Beausoleil v. Massachusetts Bay Transp. Authy., 138 F. Supp. 2d at 199-200; Corrado v. New York, New Haven & Hartford R.R., 333 Mass. 417, 418-419 (1956); Jad v. Boston & Me. Corp., 26 Mass. App. Ct. at 570-571; Gage v. Westfield, 26 Mass. App. Ct. at 690. This is true even when a railroad defendant has reason to anticipate that persons might be on the tracks at a particular location. Beausoleil v. Massachusetts Bay Transp. Authy., 138 F. Supp. 2d at 199-200; McConville v. Massachusetts Bay Transp. Authy., 852 F. Supp. 1, 2 (D. Mass. 1994); Gage v. Westfield, 26 Mass. App. Ct. at 690.
Here, when Kelly bicycled around the lowered safety gate, which blocked entrance to the crossing, and on to the rail tracks, she was violating G. L. c. 160, § 218. Her presence on the tracks at the time of the accident was thus "contrary to law." Accordingly, the railroad exception to liability is applicable and the motion judge properly dismissed the plaintiff's wrongful death claims predicated on negligence against Amtrak, the MBTA, and Prone.
II. Wrongful Death Based on Statutory Violations
The defendants moved for summary judgment on the plaintiff's wrongful death claims predicated on violations of G. L. c. 160, § 138 (failure to properly sound train's bells and whistles), and § 232 (railroad liable for collisions if proper signals are not given), which are reprinted in the margin. The judge dismissed the plaintiff's wrongful death claim based on violations of §§ 138 and 232.
Failure to provide the statutory signals creates liability in the railroad irrespective of negligence, unless the special defense set forth in § 232 is shown, i.e., unless the railroad can show that the injured person was on the tracks in violation of the law. See Mannino v. Boston & Me. R.R., 300 Mass. 71, 74 (1938). A violation of § 218, which criminalizes the act of being on railroad tracks except at established crossings, bars a plaintiff from recovering under the plain language of § 232. Cf. Borden v. New York, New Haven & Hartford R.R., 339 Mass. 266, 268-269 (1959) (motorist's violation of G. L. c. 90, § 15, precludes reco
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