Opinion
January 3, 1961.
Henry Lawlor, for the plaintiff.
Arthur L. Brown, for the defendant.
Exceptions overruled. This is an action of tort for negligence wherein the plaintiff seeks to recover for the death of her intestate under G.L.c. 229, § 2A (repealed by St. 1958, c. 238, § 2, and now embodied in G.L.c. 229, § 2). The plaintiff excepted to the direction of a verdict for the defendant at the close of the plaintiff's evidence. The intestate was an employee of a company under contract with the Massachusetts Department of Public Works. The company had no business relationship with the defendant. The intestate had been assigned to work in a manhole whose nearest edge was 5.9 feet from the nearest rail of the defendant's tracks. The defendant's engineer knew that work was being done in the general area. The intestate was struck and killed when he was bent over the rail closest to the manhole with his feet inside the track. At most, the interstate was a licensee upon the defendant's tracks, and the duty owed to him as such was to refrain from wilful, wanton or reckless conduct. There was neither allegation nor proof of such conduct, and the defendant was entitled to a directed verdict. Murphy v. Boston Maine R.R. 248 Mass. 78, 82. Couto v. Trustees of N.Y., N.H. H.R.R. 312 Mass. 23, 27.