Gunn v. Cambridge R. Co.

• Decision Date: 09 May 1887
• Citation: 144 Mass. 430,11 N.E. 678
• Parties: GUNN, Adm'r v. CAMBRIDGE R. Co.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 430

11 N.E. 678

GUNN, Adm'r v. CAMBRIDGE R. Co.

Supreme Judicial Court of Massachusetts, Middlesex.

May 9, 1887

COUNSEL

J.F. Wheeler and S.J. Elder, for plaintiff.

OPINION

Two questions are presented by the bill of exceptions: (a) Had the plaintiff's intestate ceased to be a passenger of defendant corporation at the time of the accident? (b) Do the statutes of the commonwealth, authorizing an action of tort against railroad corporations for causing death in certain cases, apply to street railroad corporations?

See Pub.St. c. 113, § 42. The decisions of this court have frequently recognized as "passengers" persons who either had not reached the cars of a railroad company, ( Warren v. Fitchburg, R.R., 8 Allen, 227,) or who had left its cars, and were seeking to leave its roadway, ( Gaynor v. Old Colony & N.R.R., 100 Mass. 215; Merrill v. Eastern R.R., 139 Mass. 252, 1 N.E. 548; McKimble v. Boston & M.R.R., 139 Mass. 542, 2 N.E 97; Keefe v. Boston & A.R.R., 142 Mass. 254, 7 N.E 874.) See Com. v. Boston & M.R.R., 129 Mass. 500. A railroad is responsible for its usual and known manner of receiving and delivering passengers. Meesel v. Lynn & B.R.R., 8 Allen, 234; McKimble v. Boston & M.R.R. supra. No less rigid rule of responsibility to passengers has been adopted for street railroads than for steam-roads. Their moving force is less powerful, and more easily controlled and this court has frequently held them responsible when under like circumstances, it would not have held a steam-road liable. McDonough v. Metropolitan R. Co., 137 Mass. 210. Pub.St. c. 112, § 212, on which this case partly rests, uses "passenger" in the same sentence applying to both kinds of roads. A passenger living upon the left-hand side of a street has an equal right with one living upon the right-hand side: namely, to an opportunity, by safe and proper means, to leave the roadway of the corporation, in the direction of his home or business, free from perils by its negligence, and that of its employes. Keefe v. Boston & A.R.R., supra; Mayo v. Boston & M.R.R., 104 Mass. 137. It is not open to the defendant to claim that plaintiff's intestate had left the location of its road at any time. It is required to keep in repair the street for 18 inches outside its track. And the offer of proof was that the child "walked as near as possible to the car, and within a foot and a half of the rail of the outward track." Pub.St. c. 113, § 32. And going outside the location of a road has not been held a bar to a recovery. Jeffersonville R.R. v. Riley, 39 Ind. 568; Mayo v. Boston & M.R.R., supra. See, also, Mowrey v. Central City R.R., 66 Barb. 55.

The provisions of the last clause of Pub.St. c. 112, § 212, are to be construed as a continuation of St.1881, c. 199, § 1; as a re-enactment thereof, and not as new enactments. Pub.St. c. 223, § 2; Woodward v. Spurr, 138 Mass. 593; Drew v. Streeter, 137 Mass. 460. Section 1, c. 112, Pub.St., defines the word "railroad" to mean steam railroad, for the purposes of this and the following chapter, unless such meaning would be repugnant to the context, or to the manifest intention of the statute. The manifest intention of the clause in question, and of chapter 199, St.1881, was to give an action of tort where remedy by indictment had previously existed. Gen.St. c. 63, applies the word "railroad" to both steam and horse railroad. Prior to enactment of St.1881, c. 199, remedy by indictment for loss of life of both passengers and those not passengers existed against horse railroads as well as steam railroads. St.1881, c. 199, does not purport to be an amendment of St.1874, c. 372, and contains no restriction of the word "railroad," and must be taken to give the remedy by action of tort broadly in all cases where the remedy by indictment previously existed. The same reasons which made it desirable to permit the remedy for loss of life to be transferred from the criminal courts to the civil courts were equally strong in case of horse railroads as steam railroads, and there is nothing in the act to indicate an opposite intention. St.1881, c, 199,§ 3, cannot have been intended to furnish the only remedy under that act against horse railroads, or it would in section 3 have specifically mentioned horse railroads as well as "stage-coaches." Surely the former are a much larger class of common carriers than the latter, and more worthy of special mention. St.1886, c. 140, cannot be retroactive so as to interpret the intent of the legislature of 1881, being the act of a distinct body, and only indicates that some one saw that a question might arise under the Public Statutes, and thought to put the question beyond the need of judicial construction. The defendant company, whose corporate name is the Cambridge Railroad Company, is at a disadvantage in attempting to relieve itself from responsibility by claiming that it is not a railroad.

S. Hoar and W.H. Martin, for defendant.

It is submitted by the defendant that, at the time of the accident October 11, 1885, there was no statute or law under which an action of tort could be maintained against a street-railway corporation for the loss of the life of a person who was not, at the time of the accident, a passenger of such corporation. The right to such action was first given by act of the legislature passed April 12, 1886, (St.1886, c. 140.) See Kelley v. Boston & M.R. Co., 135 Mass. 448. The plaintiff, therefore, cannot avail himself of this statute of 1886. The passage of this act would have been superfluous if such a right of action had already existed by previous statutes. It was not passed as explaining or defining previous legislation, but as establishing a new cause of action. We have a right, therefore, to regard it as a declaration by the legislature that no such right previously existed. It impliedly contains a legislative interpretation of existing acts as affecting the question at issue. An examination of the statutes prior to the act of 1886 only serves to strengthen the inference naturally drawn from the passage of that act. The only legislatio...