Davis v. Providence & W. R. Co.

• Decision Date: 23 October 1876
• Citation: 121 Mass. 134
• Parties: Isaac N. Davis v. Providence and Worcester Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 134

Isaac N. Davis v. Providence and Worcester Railroad Company

Supreme Court of Massachusetts

October 23, 1876

Worcester. Tort under the Gen. Sts. c. 63, § 101, to recover damages for the destruction of the plaintiff's property by fire communicated thereto by a locomotive engine of the defendant.

At the trial in the Superior Court, before Aldrich, J., the following facts were admitted: The defendant was not the owner of the railroad, over which the engine was running at the time and place of the fire, but the Boston, Hartford and Erie Railroad Company, or trustees thereof, were the owners of the road and franchise, and were operating the same by drawing their regular trains over this division of their road. The defendant, being duly authorized, had taken a lease of the Milford and Woonsocket Railroad, a line of road running from Bellingham to Milford, and connected with the main line of the defendant's road only by said road from Bellingham to Woonsocket. The Milford and Woonsocket Railroad Company was authorized by statute to enter upon and use the railroad of the Boston, Hartford and Erie Railroad Company. The defendant at the time of the fire was operating the Milford and Woonsocket Railroad under the lease, and was running regular passenger and freight trains, drawn by its own locomotive engines, and operated by its own servants from Woonsocket to Milford, passing over that portion of the Boston, Hartford and Erie Railroad lying between Bellingham and Woonsocket. The contract, by virtue of which the defendant was thus using the road of the Boston, Hartford and Erie Railroad Company, was a verbal contract, and by its terms the defendant was allowed to run its trains over the road, paying therefor a proportional part of the freight received, and local rates for passengers.

Upon the foregoing facts, the defendant asked the judge to instruct the jury that the plaintiff could not recover, under the provisions of the Gen. Sts. c. 63, § 101, and that the only corporation liable under that statute and under §§ 115, 116, of said chapter, relating to connecting roads, was the corporation owning the road.

The judge declined so to instruct the jury, but instructed them that, if they believed the plaintiff's land was damaged by fire communicated by the locomotive engine of the defendant, they should return a verdict for the plaintiff. The judge submitted to the jury the question: "Was the defendant guilty of negligence in furnishing a suitable locomotive, or in the management of the same?" And the jury answered that it was not. The verdict was for the plaintiff; and the defendant alleged exceptions.

Exceptions overruled.

T. G Kent, for the defendant.

F. P Goulding, for the plaintiff.

Ames,...