Duggan v. Bay State St. Ry. Co.

• Decision Date: 28 May 1918
• Parties: DUGGAN v. BAY STATE ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 370

119 N.E. 757

DUGGAN

v.BAY STATE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 28, 1918.

Exceptions from Superior Court, Middlesex County; Patrick M. Keating, Judge.

Action of tort for personal injuries by Margaret Duggan against the Bay State Street Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

James H. Vahey and Samuel K. Casson, both of Boston (Philip Mansfield, of Boston, of counsel), for plaintiff.

E. P. Saltonstall and C. W. Blood, both of Boston, for defendant.

RUGG, C. J.

The chief question presented in this case is whether St. 1914, c. 553, is contrary to the provisions of the Constitution of this commonwealth or of the Fourteenth Amendment to the Constitution of the United States. That question was raised by requests for instructions which were denied, and by exception to an instruction given by the presiding judge, in these words:

‘The burden is on the defendant to prove by a fair preponderance of the evidence that the plaintiff was not in the exercise of due care. Under our law as it is to-day an injured party is presumed to be in the exercise of due care, at the time he sustains the injury, and if the defendant relies upon the defense that the injured party was not in the exercise of due care, that there was negligence on his part that contributed to the injury, it is necessary for the defendant to prove that.’

The pertinent parts of the statute are as follows:

‘Section 1. In all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall be presumed to have been in the exercise of due care, and contributory negligence on his or her part shall be an affirmative defense to be set up in the answer of, and proved by the defendant.

‘Section 2. All acts and parts of acts inconsistent herewith are hereby repealed.’

[1] It is a principle of general scope that a statute must be interpreted according to the intent of the makers to be ascertained from its several parts and all its words construed by the ordinary and approved usage of the language, unless they have acquired a peculiar meaning in the law, considered in connection with the cause of its enactment, the subject-matter to which it applies, the pre-existing state of the common and statutory law, the mischief or imperfection to be remedied, and the main object to be accomplished, to the end that it be given an effect in harmony with common sense and sound reason. Holbrook v. Holbrook, 1 Pick. 248;Com. v. Loring, 8 Pick, 370, 373;Kilby Bank, Pet'rs, 23 Pick. 93;Com. v. Kimball, 24 Pick. 366, 370;Moore v. Stoddard, 206 Mass. 395, 399, 92 N. E. 502; R. L. c. 8, § 4, cl. 3; Heydon's Case, Coke's Reports, part III, 7b, vol. 2, pp. 18, 19; Eastman Photographic Materials Co. v. Comptroller General, [1898] A. C. 571, 576; O'Grady v. Wilmot, [1916] A. C. 231, 259.

There are three dominant branches of the present statute. The first of these creates the presumption of due care on the part of the person injured or killed in all kinds of actions to recover damages for injury to person or property and for causing the death of a person. This is the plain effect of the words used. The previous state of the law upon that point was that ordinarily in actions for personal injury the plaintiff was bound to prove that he was in the exercise of due care at the time of receiving the injury. That was an affirmative proposition. It must be proved either by direct evidence or as a fair deduction from established facts. The burden of proof on that point rested upon the plaintiff. While, if the circumstances under which the injury was received were shown and the evidence excluded fault on the part of the person injured, and there was nothing in his conduct to which his injury might be attributed, due care might be inferred from the absence of all appearance of fault, nevertheless it was an issue which the plaintiff must establish by some kind of evidence. There was no presumption about it one way or the other. If there was a failure of evidence, the plaintiff could not get on. The cases to this effect are very numerous. See, for example, Hilton v. Boston, 171 Mass. 478, 51 N. E. 114,Maguire v. Fitchburg R. R., 146 Mass. 379, 382, 15 N. E. 904, and Lizotte v. N. Y. C. & H. R. R. R., 196 Mass. 519, 523, 83 N. E. 362. This is the law in several other states. Whalen v. Citizens' Gaslight Co., 151 N. Y. 70, 73,45 N. E. 363;West Chicago St. Ry. v. Liderman, 187 Ill. 463, 469, 58 N. E. 367,52 L. R. A. 655, 79 Am. St. Rep. 226;Shadduck v. Grand Rapids & Indiana Ry., 179 Mich. 433, 440, 146 N. W. 238;Ward v. Maine Central R. R., 96 Me. 136, 51 Atl. 947;Greenwood v. Boston & Maine R. R., 77 N. H. 101, 88 Atl. 217;Wright v. Boston & Maine R. R., 74 N. H. 128, 134, 65 Atl. 687,8 L. R. A. (N. S.) 832, 124 Am. St. Rep. 949;Bovee v. Danville, 53 Vt. 183, 190;Dreier v. McDermott, 157 Iowa, 726, 729, 141 N. W. 315,50 L. R. A. (N. S.) 566. But it does not prevail universally. In the larger number of states, in England and in the federal courts, a presumption in favor of the exercise of due care is and has been held to exist in the absence of any evidence having a tendency to show negligence. Texas & Pacific Ry. v. Gentry, 163 U. S. 353, 366, 16 Sup. Ct. 1104, 41 L. Ed. 186;Baltimore & Potomac Ry. v. Landrigan, 191 U. S. 461, 473, 24 Sup. Ct. 137, 48 L. Ed. 262; Wakelin v. London & Southwestern Ry., 12 App. Cases, 41, 47; Hanna v. Phila. & Reading Ry., 213 Pa. St. 157, 160, 62 Atl. 643,4 L. R. A. (N. S.) 344;New Jersey Express Co. v. Nichols, 33 N. J. Law, 434, 438, 439, 97 Am. Dec. 722. See cases collected in 29 Cyc. 601, 602.

[2] All actions to recover damages for negligently causing the death of a human being are statutory in their origin. There could be no recovery at common law for such an act. Carey v. Berkshire R. R. Co., 1 Cush. 475,48 Am. Dec. 616; Admiralty Commissioners v. Amerika (Steamship), [1917] A. C. 38. All of our statutes upon that subject are penal in their nature, differing in this regard from those prevailing in most other jurisdictions. Under some of our statutes recovery also may be had by indictment. Damages are assessed, not according to the injury done but with reference to the degree of culpability of those negligently causing the death of another. Brooks v. Fitchburg & L. St. Ry. Co., 200 Mass. 8, 86 N. E. 289;Boott Mills v. Boston & Maine R. R., 218 Mass. 582, 106 N. E. 680. Under most of these statutes, it was necessary for the plaintiff to prove that the deceased ‘was actively and actually in the exercise of due care’ or due diligence. Hudson v. Lynn & Boston R. R., 185 Mass. 510, 521, 71 N. E. 66;Bothwell v. Boston Elev. Ry., 215 Mass. 467, 470, 102 N. E. 665, L. R. A. 1917F, 167, Ann. Cas. 1914D, 275. In this class of cases, also, except in instances presently to be noted, the plaintiff was not aided by any presumptions in favor of the deceased. He was obliged to make out his case by evidence, or he failed. Dacey v. N. Y., N. H. & H. R. R., 168 Mass. 479, 481, 47 N. E. 418;Moynihan v. Boston & Maine R. R., 227 Mass. 180, 182, 116 N. E. 225.

The inference is almost irresistible that this first branch of the statute was enacted in order to change what had been the common law, and to adopt in place of it the more widely prevailing rule. Its further effect is to put actions for personal injuries and for causing death in the usual case upon the same footing in respect of the presumption as to due care. The kind of due care which the plaintiff commonly was bound to prove was conduct which was free from any legally reprehensible element proximately causative of his injury. That kind of conduct must still be found or there can be no recovery even with aid of the statute. The statute relieves the plaintiff of some difficulties which formerly often barred his way to recovery when for any reason all the facts bearing upon that point were not in evidence. It establishes as the rule for the trial of such cases in the courts the presumption that normally people exercise due care and are not guilty of contributory negligence. The defendant is not deprived of a full opportunity to submit all the facts bearing on that issue.

The second branch of the statute is the correlative of the first. It makes the contributory negligence of the person injured a matter of affirmative defense to be pleaded as such, and the burden of proving it falls upon the defendant as the party obliged to plead it. Contributory negligence on the part of a person injured through the negligence of another is want of due care in respect to the event causing the injury, and is in itself conduct having a share in bringing on the harm. Failure to exercise due care respecting the cause of his injury resulting from the negligence of another by the person injured is contributory negligence. Gaffney v. Bay State St. Ry. Co., 221 Mass. 457, 460, 109 N. E. 361. The statute makes no change in the law in that respect. When on all the evidence it appears that the person injured has by his own want of ordinary prudence contributed to the injury, he cannot recover. It shifts the burden of proof from the plaintiff, who formerly was obliged to establish by the greater amount of credible evidence that he was free from contributory negligence to the defendant, who now must fasten contributory negligence upon the plaintiff by the greater amount of credible evidence or he fails upon this aspect of his case. This branch of the statute also puts the law of this commonwealth in this particular in harmony with that administered in the federal and numerous other courts. As was said in Washington & Georgetown Ry. Co. v. Gladmon, 15 Wall. 401 at page 406,21 L. Ed. 114:

‘While * * * the absence of reasonable care and caution, on the part of one seeking to recover for an injury, * * * will prevent a recovery, it is not correct to say that it is...