Commonwealth v. Boston & A. R. Co.

• Decision Date: 06 September 1876
• Citation: 121 Mass. 36
• Parties: Commonwealth v. Boston and Albany Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 36

Commonwealth v. Boston and Albany Railroad Company

Supreme Court of Massachusetts

September 6, 1876

Suffolk. Indictment under the Gen. Sts. c. 63, § 98, to recover for the use of the next of kin of James T. Keogh, a fine, by reason of the loss of his life from being run over on June 18, 1874, by a locomotive engine and train of cars of the defendant, at a grade crossing in Boston. The indictment alleged that Keogh was not a passenger nor an employee of the corporation, that he left no widow nor children, but left as his next of kin a father, mother, brothers and sisters. The defendant demurred to the indictment, on the ground that it did not allege that the deceased left any widow or children but did allege that there was no widow nor children. In the Superior Court, Colburn, J., overruled the demurrer; the defendant pleaded guilty, and the case was, at the request of the parties, reported by the judge for the determination of this court upon the question of law raised by the demurrer.

Demurrer sustained.

C. P Greenough, for the Commonwealth.

G. S Hale, for the defendant.

Devens J. Colt & Lord, JJ., did not sit.

OPINION

Devens, J.

When by reason of the negligence or carelessness of a railroad corporation, "or of the unfitness or gross negligence or carelessness of its servants or agents," the life of a passenger is lost, the Gen. Sts. c. 63, § 97, impose a fine upon the corporation, to be recovered by indictment "for the use of the widow and children of the deceased in equal moieties, but if there are no children, to the use of the widow, or if no widow, to the use of the next of kin." The 98th section of the same chapter provides for the loss of life of a person not a passenger, occasioned by reason of the negligence or carelessness of the corporation, or by reason "of the unfitness or gross negligence or carelessness of its servants or agents, while engaged in its business," and imposes a fine, also to be recovered by indictment, "for the use of the widow and children as provided in the preceding section." The latter section does not mention, expressly or by direct reference, "the next of kin," who are mentioned in the former section, and who must there be considered as next of kin, other than children.

Both sections contemplate proceedings, as for a criminal offence by indictment; but a leading object of them is to secure some pecuniary provision for those who may be dependent upon the deceased, and while penal in form, they are therefore largely remedial...