Foynes v. New York Cent. R.R.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CROSBY
• Citation: Foynes v. New York Cent. R.R., 276 Mass. 89, 177 N.E. 119 (Mass. 1931)
• Decision Date: 24 June 1931
• Parties: FOYNES v. NEW YORK CENTRAL RAILROAD.

276 Mass. 89

177 N.E. 119

FOYNES

v.NEW YORK CENTRAL RAILROAD.

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1931.

Case reserved and report from Superior Court, Suffolk County; P. M. Keating, Judge.

Action by Florence Foynes, administratrix, against the New York Central Railroad. Demurrer to declaration was sustained. On reservation and report from the superior court.

Order sustaining demurrer affirmed, and judgment for the defendant.

W. H. Sullivan, of Boston, for plaintiff.

L. A. Mayberry and H. L. Barrett, both of Boston, and A. L. Brown, for defendant.

CROSBY, J.

This is an action to recover for the death of the plaintiff's intestate, Donald Foynes, who was struck and killed by one of the defendant's trains while walking on its tracks, in Allston, on April 8, 1930. The declaration is in four counts; the second and third were waived at the trial, and the first is waived here. The sole question before this court is whether the fourth count states a cause of action. This count alleges that the defendant is a railroad corporation; that the defendant was required by G. L. c. 160, § 93, to erect and maintain a suitable fence on both sides of the entire length of the railroad, that the defendant railroad failed to erect and maintain a suitable fence on the right side, west bound, of its railroad and ‘that as a result of the failure to comply with chapter 160, § 93, of the General Laws, the plaintiff's intestate was permitted to come upon its railroad and that the defendant, its agents or servants by their wilful, wanton and reckless misconduct struck and killed the plaintiff's intestate, all to her great damage as in her writ and declaration alleged.’

A demurrer to this count was rightly sustained. It has long been held in this commonwealth that in the absence of statutory provision no recovery can be had for the death of a person, however wrongfully caused by another. Carey v. Berkshire Railroad, 1 Cush. 475,48 Am. Dec. 616;Sherlag v. Kelley, 200 Mass. 232, 86 N. E. 293,19 L. R. A. (N. S.) 633, 128 Am. St. Rep. 414, and cases there collected; Wescott v. Henshaw Motor Co. (Mass.) 175 N. E. 153. In this commonwealth the whole subject is now covered by statutes. The statutes conferring a right of recovery for wrongfully causing the death of another are collected in G. L. c. 229, and its several amendments. Section 1, as amended by St. 1929, c. 119, § 1, authorizes an action for damages for death caused by a defective way; section 2, as amended by St. 1921, c. 486, § 35, allows an action for damages for death due to the negligence of a common carrier of passengers except a railroad, street railway or an electric railroad company; section 3 provides for action against a railroad, street railway, or electric railroad, for death by reason of its negligence or the unfitness or negligence of its agent or servant while engaged in its business; section 4, as amended by St. 1929, c. 119, § 2, gives a right of action to the widow or next of kin of an employee against an employer for negligence which results in his death; section 5 provides for an action in a case resulting in death from negligence not previously enumerated in G. L. c. 229. An action against a railroad company for death resulting from negligence can be brought only under G. L. c. 229, § 3, which reads in part as follows: ‘If a corporation operating a railroad, street railway or electric railroad, by reason of its negligence or of the unfitness or negligence of its agents or servants while engaged in its business, causes the death of a passenger, or of a person in the exercise of due care who is not a passenger or in the employment of such corporation. * * * Such corporation shall * * * be liable in damages * * * which shall be recovered in an action of tort, * * * by the executor or administrator of the deceased. * * *’ Count 4 of the declaration upon which the plaintiff relies does not allege such conduct of the defendant as would entitle her to recover under G. L. c. 229, § 3. That section provides a remedy arising from death caused by negligence, but it does not create a right of action due to willful, wanton and reckless conduct, as alleged. The difference ‘between negligence, whether ordinary or gross, and conduct which is willful, wanton, in reckless disregard of the rights of others, is a difference in kind and not merely one of degree.’ Cotter v. Boston, Revere Beach & Lynn Railroad, 237 Mass. 68, 72, 129 N. E. 426, 427. A statute that authorizes an action for negligence resulting in death cannot be construed as creating or permitting an action for wanton, willful and reckless conduct that results in death. Prondecka v. Turners Falls Power & Electric Co., 238 Mass. 239, 130 N. E. 386. In the...