Brooks v. Fitchburg & L. St. Ry. Co.
| Decision Date | 22 October 1908 |
| Citation | 200 Mass. 8,86 N.E. 289 |
| Parties | BROOKS v. FITCHBURG & L. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James E. McConnell and J. H. P. Dyer, for appellant.
Charles F. Baker and Emerson W. Baker, for appellee.
The plaintiff's declaration alleges that his intestate, while a passenger upon the defendant street railway, received an injury on September 24, 1906, by reason of the negligence of the defendant's servants, from which she died on June 3 1907, being survived by husband and children, and that the action is brought under St. 1907, p. 324, c. 375, the writ being dated February 17, 1908. The question presented is whether said statute, approved May 4, 1907, renders a street railway company liable in damages for death caused by the negligence of itself or its servants. It is contended, on the one side, that its language is plain and comprehensive and in its terms broad enough to include street railway companies and on the other, that taking into perspective all our statutes authorizing recovery for death caused by negligence and giving to each its proper scope and construing them all so as to constitute an harmonious legal system, it was not the intent of the Legislature to include street railway companies within said act, but that damages for such a misfortune as is here set forth can be recovered only under St. 1906, p. 506, c. 463, pt. 1, § 63, St. 1907, p. 338, c. 392, approved May 8, 1907. Substantially this question was left open in Beale v. Old Colony Street Railway Co., 196 Mass. 119, 81 N.E. 867, and, while adverted to in Oulighan v. Butler, 189 Mass. 287, 295, 75 N.E. 726, in Kelsey v. N. Y., N.H. & H. R. R. Co., 181 Mass. 64, 63 N.E. 8, and in Hudson v. Lynn & Boston Railroad Co., 185 Mass. 510, 71 N.E. 66, was not decided.
In determining this question, the origin and subsequent history of the several statutes are important. It is elemental in this commonwealth that at common law there was no recovery for negligence causing loss of life. The earliest statute in this commonwealth, providing damages for death, was passed over 200 years ago, and related to death caused by defects in highways. Prov. St. 1693, p. 137, c. 6, § 6. Its substance is now found in Rev. Laws, c. 51, § 17, and has continuously been a part of our statute law ever since its first enactment. It was the only statute of the kind until St. 1840, p. 224, c. 80, was passed, which gave a remedy by indictment against all common carriers for causing, by their own negligence or the unfitness or gross carelessness of their employés, the loss of life of a passenger, whether in the exercise of due care or not. By St. 1853, p. 622, c. 414, railroad corporations were made liable to indictment for causing under similar conditions the loss of life of any person in the exercise of due care, not a passenger or employé, thus extending liability against railroads alone beyond that established in 1840 for all common carriers. The ground of liability and the measure of recovery were the same in both statutes. When the laws of the commonwealth were consolidated in the General Statutes, a chapter was devoted to railroad corporations, and by two sections the pre-existing liability of railroads for loss of life was continued: Chapter 63, § 97, Gen. St. 1860, continued that imposed by St. 1840, p. 224, c. 80, and section 98 that created by St. 1853, p. 622, c. 414. The liability for loss of life of a passenger by other common carriers was reenacted in chapter 160, § 34, Gen. St. 1860. The ground of liability in both cases was the same, namely, the negligence or carelessness of the defendant itself or the unfitness or gross negligence or carelessness of its servants or agents. St. 1864, p. 155, c. 229, was the first general law respecting street railways. By section 37 it was provided that if, by reason of the negligence of the company or the unfitness, negligence or carelessness of its servants, the life of any person, whether passenger or not, in the exercise of due care, and not in the employ of the company, was lost, there should be a remedy by indictment. This section differed in important particulars from the preceding statutes. It imposed liability for the mere negligence of its servants and agents, while railroads and other common carriers were liable only for the gross negligence of their servants or agents. Street railways were made liable also for the death of persons other than passengers who were not its employés, being in this respect upon the same footing as railroads, and having a severer liability than other common carriers, but, on the other hand, all persons, whether passengers or not, were required to be in the exercise of due care as a prerequisite to the liability, in this respect the burden as to passengers being less severe than that upon railroads or other common carriers. The next general codification of the street railway laws was St. 1871, p. 740, c. 381, § 49 of which continued this same liability of street railway companies. In 1874, by chapter 372, p. 347, of the Acts of that year, the general laws relating to railroads were consolidated and re-enacted, and by section 163 the liability of railroads in this regard was continued upon the same basis as that theretofore existing. By St. 1881, p. 521, c. 199, the important change was made in the law as to loss of life occasioned by railroad companies and proprietors of any steamboat, stage coach or common carriers of passengers, and for the life of a person lost by a defective highway, in that a new remedy, namely, an action of tort, was given for the benefit of the widow and near kindred of the person deceased. Section 6 of this act preserved as concurrent the remedy by indictment existing against railroads by St. 1874, pp. 396, 397, c. 372, §§ 163, 164, but made no corresponding preservation of remedy against other common carriers or municipalities. This act did not include street railways by name. When the Public Statutes were enacted, the liability to indictment disappeared against all except railroads and street railways. The Public Statutes made important changes in the laws theretofore existing, in that it combined the remedy by indictment against both steam railroads and street railways in a single section, and excluded the latter from liability for ordinary negligence of their servants and agents, and placed them on the more restricted ground, upon which railroads and other common carriers had always stood, of liability only for gross negligence of servants and agents. It also placed the street railways upon a more favorable footing than before, in that persons not passengers were required to be in the exercise of due diligence before liability for their death arose. Pub. St. 1882, c. 112, § 212. But this section did not by express phrase give the remedy by action of tort against street railways. Pub. St. 1882, c. 73, § 6, continued the liability of 'the proprietor or proprietors of a steamboat or stage coach, or of common carriers of passengers,' subjecting them only to an action of tort for loss of life of passengers, but upon the same conditions as before. Upon this state of legislation it was held, in Holland v. Lynn & Boston R. R., 144 Mass. 425, 11 N.E. 674, without adverting to the distinctions in the statutes just pointed out between liability for gross and ordinary negligence nor the differences as to due care being a prerequisite to recovery, that street railway companies were not included within the purview of Pub. St. 1882, c. 73,§ 6, rendering 'common carriers' liable to an action of tort, for the reason that the conclusion was irresistible that it was not the intent of the Legislature by that enactment to include such companies. St. 1883, p. 532, c. 243, imposed upon the railroads liability for the death of an employé occurring under such circumstances as would have entitled the deceased to maintain an action against the corporation if death had not resulted, under the same conditions and with the same remedies as if the deceased had not been an employé. The remedy by an action of tort, which had, by St. 1881, p. 521, c. 199, been given where there was liability for death, against steam railroads and other common carriers, was extended to street railway companies by St. 1886, p. 117, c. 140, thus supplying the omission pointed out in Holland v. Lynn & Boston R. R. Co., 144 Mass. 425, 11 N.E. 674. In 1871, by chapter 352, p. 699, of the acts of that year it was enacted that a railroad should be liable to indictment as provided by Gen. St. 1860, c. 63, § 98, for causing death by collision with its engines or cars at a grade crossing where sounding of a whistle or ringing of a bell was required and these signals were not given, unless the deceased or those responsible for him in addition to the want of ordinary care, was also guilty of gross or wilful negligence or acting in violation of the law and these contributed to the death. This relieved a plaintiff in one respect from the burden of proof, and imposed a heavy burden of proof upon the railroad as an affirmative defense. Commonwealth v. B. & M. R. R., 133 Mass. 383; Manley v. B. & M. R. R., 159 Mass. 493, 34 N.E. 951; McDonald v. N.Y. C. & H. R. R., 186 Mass. 474, 72 N.E. 55. This provision has been retained without very material change, except that an action of tort has been also given, until the present time. St. 1874, p. 397, c. 372, § 164; St. 1881, p. 521, c. 199, § 2; Pub. St....
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