Commonwealth v. Boston &Amp; Lowell Railroad Corporation

• Decision Date: 03 January 1883
• Citation: 134 Mass. 211
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Commonwealth v. Boston & Lowell Railroad Corporation

134 Mass. 211

Commonwealth v. Boston & Lowell Railroad Corporation

Supreme Court of Massachusetts

January 3, 1883

Argued November 27, 1882

Middlesex. Indictment on the St. of 1874, c. 372, § 163 for causing the death of Daniel Driscoll, on May 3, 1881 while a passenger on a train of cars of the defendant corporation. At the trial in the Superior Court, before Brigham, C. J., it appeared that Driscoll was a passenger on the defendant's road at the time named in the indictment and, although there was room for him to stand within the cars, he was standing on the front platform of the first passenger car, when the train, through the negligence of an employee of the defendant, in misplacing a switch, left the main track, and ran into a train of cars standing on a side track; that Driscoll was crushed between the tender of the locomotive engine and the platform of the car on which he had been standing; and that no one else on the train of cars was injured.

These facts not being in dispute, the defendant asked the judge to rule that the indictment could not be maintained. The judge refused so to rule, and instructed the jury as follows: "It being admitted that carelessness or neglect of the defendant's agent or servant caused a collision of cars, upon which Driscoll was riding as a passenger, and that this collision caused the death of said Driscoll, the jury, for the purposes of this trial, are instructed, that no question of due care on the part of said Driscoll arises in this case, and that, -- notwithstanding said Driscoll, at the time of said collision, was standing on the platform of the car upon which he was a passenger, having gone and remained there voluntarily, when there was room to stand within said car, -- upon the undisputed facts, the jury will be warranted in finding that the allegations of the indictment are proved beyond a reasonable doubt, and in returning a verdict of guilty against the defendant." The jury returned a verdict of guilty; and the defendant alleged exceptions.

Judgment on the verdict.

J. H. George, for the defendant.

W. B. Gale & J. P. Gale, (J. G. Maguire with them,) for the Commonwealth.

Colburn J. Holmes, J., absent.

OPINION

Colburn, J.

The only question presented in this case is whether, at a trial under an indictment for causing the death of a passenger, based upon the provisions of the St. of 1874, c. 372, § 163, the want of due care on the part of the passenger killed is a defence to such indictment.

The first statute upon this subject was the St. of 1840, c. 80, which provided that, "if the life of any person, being a passenger, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, steamboat, stagecoach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents, in this Commonwealth, such proprietor or proprietors, and common carriers, shall be liable to a fine,....to be recovered by indictment, to the use of the executor or administrator of the deceased person," &c.

The St. of 1853, c. 414, subjected a railroad corporation to the same liabilities as the St. of 1840, c. 80, if from the same causes "the life of any person, not being a passenger or employee of such corporation, shall be lost, such person being in the exercise of due care and diligence," &c.

In the General Statutes the provisions of the St. of 1840, c. 80, are reenacted, and so far as they relate to railroad corporations are contained in c. 63, § 97, and the provisions of the St. of 1853, c. 414, are reenacted in c. 63, § 98. So far as the provisions of the St. of 1840, c. 80, relate to persons, or corporations other than railroads, they are reenacted in the Gen. Sts. c. 160, § 34, relating to offences against the person.

In the revision and consolidation, in 1874, of all general acts relating to railroads, the provisions of the Gen. Sts c. 63, §§ 97, 98, are as follows: "If by reason of the negligence or carelessness of a railroad corporation, or of...