Carbone v. Trustees of New York, N.H.&H.R. Co.

• Decision Date: 31 January 1947
• Citation: 71 N.E.2d 403,320 Mass. 710
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CARBONE v. TRUSTEES OF NEW YORK, N. H. & H. R. CO. NICHOLS v. SAME.

320 Mass. 710

71 N.E.2d 403

CARBONE

v.TRUSTEES OF NEW YORK, N. H. & H. R. CO.

NICHOLS

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 31, 1947.

Exceptions from Superior Court, Middlesex County; Morton, Judge.

Companion actions of tort by Albert Carbone and by Charles E. Nichols against Trustees of New York, New Haven and Hartford Railroad Company for starting a fire on plaintiffs' separate property. A verdict was directed for the defendant in each action and the plaintiffs bring exceptions.

Exceptions sustained.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, RONAN, WILKINS and SPALDING, Jj.

E. T. Simoneau, of Boston, for plaintiffs.

N. W. Deering, of Boston, for defendants.

SPALDING, Justice.

These are two actions of tort in which the judge, at the close of the plaintiffs' opening, ordered verdicts for the defendants subject to the plaintiffs' exceptions. The declarations in the two cases are substantially the same. In the first count of each the plaintiff alleges negligence by reason of a violation of G.L.(Ter.Ed.) c. 48, § 16; the second counts allege negligence arising out of a violation of G.L.(Ter.Ed.) c. 160, § 235, as amended, St.1941,c. 490, § 38. While the declarations do not specifically mention the statutes, it is obvious that they were drawn with reference to them.

In his opening, counsel for the plaintiffs read to the jury the provisions of G.L.(Ter.Ed.) c. 160, § 235, as amended, and of G.L.(Ter.Ed.) c. 48, § 16. He then stated that he would prove that at some time prior to April 30, 1942, the defendants had cut and piled up brush on their railroad location; that between April 1 and December 1 of that year they did not clear the location of dead leaves, dead grass, and other inflammable material; that some time in the early afternoon of April 30 the plaintiff Carbone, ‘who * * * [operated] a farm at some distance from this woodland, was advised by some of his workmen that his wood was on fire’; and that Carbone and others attempted to extinguish the fire ‘but it got beyond their control and got in onto * * * [the plaintiff] Nichols's woodland, and from there into Carbone's woodland,’ burned about 250 cords of cord wood and about 500 fence posts thereon, and damaged a sizeable tract of land. Counsel then stated that he would offer in evidence photographs, which were taken as soon after the fire as possible, ‘to show that part of the location which was burned and from which it spread onto the woodland of the plaintiffs in these two actions.'

The following colloquy then occurred: ‘The judge: If it is not clear on the record, may I say that as part of your opening you say that you have no evidence of what caused the fire? Counsel for the plaintiffs: That is true. The judge: As to who caused it, or why? Counsel for the plaintiffs: That is true.’ The judge then said to the jury, ‘I am going to direct a verdict for the defendant * * * because I feel that although, if the facts were proved as set forth in the opening you would be warranted in finding that a failure to remove slash might be a breach of a penal statute and therefore evidence of negligence, without any evidence as to what caused the fire I do not believe that the plaintiffs can maintain their actions. For that reason, I direct a verdict for the defendant in each action.'

The judge erred in directing verdicts for the defendants.

We lay to one side the contention of the defendants that G.L.(Ter.Ed.) c. 48, § 16,¹ is not applicable to railroads and that G.L.(Ter.Ed.) c. 160, § 235, as amended, was intended to occupy the field exclusively on the matter of a railroad's duty to keep its location free of brush and similar material. The opening did not reveal any facts tending to show a violation of G.L.(Ter.Ed.) c. 48, § 16, but disclosed only a violation of G.L.(Ter.Ed.) c. 160, § 235, as amended, the relevant portions of which provide that ‘Every corporation operating a steam railroad * * * shall, between April first and December first in each year, keep the full width of all of its locations over which [its] engines are operated, to a point two hundred feet distant from the centre line on each side thereof, clear of dead leaves, dead grass, dry brush or other inflammable material,’ with certain exceptions not here material. No penalty is prescribed for its violation. Nevertheless, we are of opinion that a violation of it would be evidence of negligence as to all consequences that were intended to be prevented. Kralik v. LeClair, 315 Mass. 323, 326, 52 N.E.2d 562. And we have no doubt that one of these consequences, if not the chief one, was the protection of other property against damage by fire.

It is true that in all of the cases that have come to our attention where violation of a statute has been held to be evidence of negligence, the statute under consideration was penal. Expressions may be found in many of these cases from which it might be inferred that this principle is confined to penal statutes, ordinances by-laws or regulations.² But these expressions cannot be taken to place such a limitation on the rule, for in the cases in which they appear that question was not before the court. On principle there should be no such limitation. The Legislature in enacting § 235 imposed a duty on railroad corporations with respect to certain inflammable material on their locations. We see no reason why a breach of that duty should not be treated as evidence of negligence. It would be strange if a court which holds that the violation of a rule of a corporation is evidence of negligence ( Stevens v. Boston...