Fay v. Boston & W. St. Ry. Co.

• Decision Date: 15 October 1907
• Parties: FAY et al. SAME v. BOSTON & W. ST. RY. CO. SAME v. SHAW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 329

82 N.E. 7

FAY et al. SAME v. BOSTON & W. ST. RY. CO. SAME v. SHAW et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 15, 1907

COUNSEL

Henry R. Scott, for appellants.

Guy Murchie, for appellees.

OPINION

KNOWLTON C.J.

The most important question in these two cases involves an interpretation of Rev. Laws, c. 111, § 270, which creates an absolute liability, on the part of railroad corporations, for damages to property by fire communicated by their locomotive engines. The plaintiffs' tract of woodland is alleged to have been injured by fire from a dummy engine, used in the construction of a street railway for the defendant in the first action, by contractors who are the defendants in the second action. We are called upon to determine the meaning of the statute in its application to cases of this kind.

The first enactment touching the subject was in St. 1837, pp 255-257, c. 226,§§ 6-10, which changed the common law by putting upon a railroad company the burden of showing that it had used 'all due caution and diligence,' if it would relieve itself from liability for damages from a fire communicated by one of its locomotive engines. By St. 1840, p. 228, c. 85, § 1, this liability was made absolute. In St. 1864, p. 166, c. 229, § 34, the liability was extended to street railway companies. Except as there have been changes in the law relative to street railways, the provision has remained without material change since 1840.

It is contended by the defendants that the language of the statute when construed in connection with the conditions to which it relates, applies only to locomotive engines used by a completed railroad or railway, in the exercise of a franchise which subjects property along the railroad to peculiar dangers. The argument is that it was never intended to change the law relative to a liability for injuries done in the construction of railroads; that, ordinarily, the peculiar dangers on account of which the statute was enacted would not arise, in any considerable degree, if at all, in the construction of a railroad, and that the statute was not directed to possible dangers so arising, for which the rule of the common law making parties liable for the consequences of their negligence if equitable and sufficient.

There is much to indicate that this contention is correct. The language of the original statute, which refers to a 'fire communicated by a locomotive engine of any railroad corporation,' seems to contemplate a corporation using engines upon a completed railroad, under its franchise. In the next section the corporation is given an insurable interest in property 'along its route,' which implies that it has a route, that is, a recognized course or way traveled over. The exercise of its franchise by the frequent passage of ordinary locomotive engines over a railroad creates danger which justifies an unusual provision for the protection of property owners along its line. This is the danger which moved the Legislature to enact the law. It is a danger which does not exist until the road is completed and in use. The possibility that some kind of a steam engine may be used in the work of construction, and that a spark may be emitted from it, can hardly be considered a danger to which the statute was directed.

The opinions of this court, although not decisive of the precise question before us, tend strongly to support the contention of the defendants. In Hart v. Western R. R. Co., 13 Metc. 99-104, 46 Am. Dec. 719, Chief Justice Shaw said 'Railroad companies acquire large profits by their business, but their business is of such a nature as necessarily to expose the property of others to danger. * * * The manifest intent and design of this statute, we think, and its legal effect * * * are * * * to afford some indemnity against this risk to those who are exposed to it, and to throw the responsibility upon those who are thus authorized to use a somewhat dangerous apparatus, and who realize a profit from it.' Chief Justice Bigelow expressed a similar conclusion in Ross v. Boston & Worcester R. R. Co., 6 Allen, 87-...