AUGUSTUS O. JONES v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

DECOURCY, J. This is an action of tort to recover damages for personal injuries sustained by the plaintiff while driving over the tracks of the defendant in that part of the town of Thompson known as Mechanicsville in the State of Connecticut. The place of the accident was within the premises of the French River Textile Company. The road upon which the plaintiff was driving led into the lands and buildings of that company and was kept in repair by it, as it had been by its predecessor in title who originally laid it out. The way never was laid out or accepted by public authorities.

The first contention of the plaintiff is that this road had become a public way by prescription, and that accordingly the provisions of the General Statutes of Connecticut (§ 3787) with reference to sounding bells and whistles at crossings applied. [Note p522-1] Under the laws of that State introduced in evidence, a period of fifteen years' uninterrupted use is necessary in order to acquire such right of way. (Gen. Sts. Conn. § 1073); and in the absence of anything to the contrary the common law of Connecticut is presumably the same as that of this Commonwealth in requiring the use to be adverse, continued without interruption, and with the acquiescence of the owner. Bence v. New York, New Haven, & Hartford Railroad, 181 Mass. 221. An examination of the testimony discloses no such public prescriptive right. The way across the tracks was created solely as a private way, for the convenience of the mill owner who conveyed the premises to the defendant's predecessor in title, [Note p522-2] and appears to have been used mostly by employees and others having business at the factory. The use of the crossing by the general public seems to have been merely incidental to an open private way and by permission of its owner, according to the testimony of the only witness whose observation covered the period of fifteen years.

Assuming, however, that there was some evidence for the jury

Page 523

that the public use of the way was adverse, the uncontradicted testimony shows that this use was interrupted and not continuous. Upon the Mechanicsville end of the road, across the bridge, was a gate which was closed and locked at times, preventing access to the mill property; and at the West Thompson end was a chain attached to posts which from time to time during the period in question prevented access to the way. Clearly the evidence would not warrant a finding that the way over which the plaintiff was crossing was a public way, and consequently the statutory requirements as to sounding bells and whistles at a highway crossing do not apply. McCreary v. Boston & Maine Railroad, 153 Mass. 300. Sprow v. Boston & Albany Railroad, 163 Mass. 330. Aikens v. New York, New Haven, & Hartford Railroad, 188 Mass. 547.

The evidence does not support the contention that the defendant invited the plaintiff to use this crossing. Under the reservation in its deed the railroad company was bound to leave the crossing open for the convenience of the Textile Company and those having business dealings with it. The defendant did not plank the crossing, nor grade its approaches; it maintained no gate or flagman or signs; and did no act which could be construed as an express invitation to the public; and it does not appear that it knew that the crossing was being used by any persons except those who were entitled to do so of right. Nor was there any implied representation by the defendant to the plaintiff that the way was one which might be used with safety, or an inducement to use it as such. The way was laid out entirely within the enclosed premises of the Textile Company and maintained by it; the entrances were guarded by gates and chains; the plaintiff knew that it led directly into the factory yard, and had seen the chain when he entered the Thompson road; everything in sight indicated the true character of the way. When the plaintiff, for his own convenience, undertook to pass through this private way as a short cut between Thompson and Mechanicsville, he was at most a bare licensee and used the premises at his own risk; and as there was no evidence that the defendant was guilty of any wanton or wilful conduct, the trial judge [Note p523-1] rightly directed a verdict in its favor. This conclusion renders it unnecessary to consider the

Page 524

issue of the plaintiff's due care. Moffatt v. Kenny, 174 Mass. 311. Bowler v. Pacific Milk, 200 Mass. 364. O'Brien v. Union Freight Railroad, 209 Mass. 449.

Exceptions overruled.

G. E. Tebbetts, for the plaintiff.

J. L. Hall, for the defendant.