Hill v. Boston & M. R. R.

Citation77 N.H. 151,89 A. 482
PartiesHILL v. BOSTON & M. R. R.
Decision Date06 January 1914
CourtSupreme Court of New Hampshire

Transferred from Superior Court, Merrimack County; Plummer, Judge.

Action of tort by Kate Hill, administratrix, against the Boston & Maine Railroad, brought under the Massachusetts Act of 1907, c 392, § 1, for the negligent killing of plaintiff's intestate while a passenger on defendant's road. Verdict for plaintiff, and case transferred from Superior Court on defendant's exceptions. Exceptions overruled.

John M. Stark and Martin & Howe, all of Concord, for plaintiff.

Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant.

WALKER, J. The negligence of the defendant seems to be conceded; but it is contended that the deceased was not a passenger at the time of his injury, within the meaning of the statute under which this action was brought.

This question is principally one of fact for the jury; and, if there was any substantial evidence in the case from which that fact could be found, the verdict upon that point was justified. In McKimble v. Railroad, 139 Mass. 542, 2 N. E. 97, it is held that a passenger on a railroad car continues to be such while rightfully leaving the car and the station at which he has stopped. The plaintiff's intestate, having arrived at the station at Salem upon one of the defendant's trains, had left the train and was proceeding to leave the station upon a platform provided by the defendant for the accommodation of passengers. This platform led to a street which was crossed by the defendant's tracks. There was evidence that just as he was stepping from the platform he was struck by the tender of an engine which was backing, and thereby received fatal injuries. Whether this evidence was credible was for the jury to decide.

The testimony of one witness, at least, tended to prove that he did not have a safe exit from the platform into the street; and, so long as he was rightfully using the platform, he was entitled to a passenger's protection. It was competent, therefore, for the jury to find that he had not ceased to be a passenger and had not become a highway traveler.

As the jury were justified in finding that the deceased was a passenger at the time he was killed, the important question remains for consideration whether the courts of this state have jurisdiction of the cause of action and can enforce the plaintiff's rights, or the rights of the deceased's relatives secured to them by the statutes of Massachusetts. The statutory provisions referred to are contained in chapter 392, Acts 1907, and are as follows: "If a corporation which operates a railroad or a street railway, by reason of its negligence or by reason 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 who is in the exercise of due care and who is not a passenger or in the employ of such corporation, it shall be punished by a fine of not less than five hundred nor more than ten thousand dollars which shall be recovered by an indictment prosecuted within one year after the time of the injury which caused the death, and shall be paid to the executor or administrator, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin; but a corporation which operates a railroad shall not be so liable for the death of a person while walking or being upon its railroad contrary to law or to the reasonable rules and regulations of the corporation. Such corporation shall also be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars, which shall be assessed with reference to the degree of culpability of the corporation or of its servants or agents, and shall be recovered in an action of tort, begun within one year after the injury which caused the death, by the executor or administrator, of the deceased for the use of the persons hereinbefore specified in the case of an indictment. ** * But no executor or administrator shall, for the same cause, avail himself of more than one of the remedies given by the provisions of this section."

It is contended in behalf of the defendant that the courts of one state do not enforce the penal statutes of another state; that the statute above quoted is a penal statute; that it has been held in that state to have that character; and that this court is bound by that construction and cannot examine the statute with a view of determining whether it is so far criminal that it is not enforceable in this state. One defect in this reasoning is the assumption that the decisions in Massachusetts, in which it has been said that the statute is penal in character, bind the courts of other states upon the question whether it is enforceable in other jurisdictions.

For obvious reasons the courts of one state cannot enforce the criminal law of another; and it is doubtless true that, where the controlling purpose of a statute is to impose a punishment for a violation of its provisions, its execution would not be attempted in a foreign jurisdiction.

But it is the court that is appealed to that must determine whether the foreign statute, whose enforcement is sought, is of such a character, in view of its evident purpose, that it does in effect require the imposition of punishment for a crime against the laws of another state, or whether it only requires the vindication of private statutory rights of a transitory nature. Because for some purposes it is decided that a local statute is penal in its character, it does not follow that a court in another jurisdiction must deem it penal for another and different purpose; that is, for the purpose of taking jurisdiction. The question presented in the latter case could not arise in the state where the statute was enacted, for the question is: is the statute penal in an international sense? Can it be conveniently enforced in a civil action for the vindication of the plaintiff's statutory rights?

"The test is not by what name the statute is called by the Legislature or the courts of the state in which it was passed, but whether it appears to the tribunal which is called upon to enforce it to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person. In this country, the question of international law must be determined in the first instance by the court, state or national, in which the suit is brought. If the suit is brought in a circuit court of the United States, it is one of those questions of general jurisprudence which that court must decide for itself, uncontrolled by local decisions." Huntington v. Attrill, 146 U. S. 657, 683, 13 Sup. Ct. 224, 233 (36 L. Ed. 1123). The same principle was well expressed in the same case when it was before the privy council ([1893] A. C. 150, 155): "Judicial decisions in the state where the cause arose are not precedents which must be followed, although the reasoning upon which they are founded must always receive careful consideration, and may be conclusive. The court appealed to must determine for itself * * * whether its enforcement would, either directly or indirectly, involve the execution of the penal law of another state."

But the Massachusetts decisions, while referring to the statute as a penal one, do not use that word without qualification. The remedy under the statute is sometimes referred to as "in the nature of a penalty" (Oulighan v. Butter, 189 Mass. 287, 295, 75 N. E. 726), as "penal in its character" (Littlejohn v. Railroad, 148 Mass. 478, 482, 20 N. E. 103, 2 L. R. A. 502), and its remedial character is recognized in Hudson v. Railroad, 185 Mass. 510, 71 N. E. 66. In fact, it is difficult to read the statute without being impressed with the idea that one controlling purpose of the Legislature, as evidenced by the language used, was to remedy the supposed defect in the common law and to enable the family of a passenger or employé to recover compensation for his death caused by the defendant's negligence. And this purpose is explicitly recognized in Commonwealth v. Railroad, 121 Mass. 36, which was an action under the statute which at that time could only be brought by indictment. The court say 121 Mass. 37): "Both sections contemplate proceedings, as for a criminal offense, by indictment; but a leading object of them is to secure some pecuniary provision for those who may be dependent upon the deceased, and, while penal in form, they are therefore largely remedial in character." Although the remedy by indictment could not be resorted to in a foreign jurisdiction, this language is a strong intimation of the remedial character of the proceedings when, under the present statute, they take the form of a civil transitory action in tort. The decision in this case was that the indictment could not be sustained because in the statute upon which it was founded it was provided that the amount recovered should be for the use of the widow and children, and, as the deceased left no widow and children, the action must fail. This is almost a practical demonstration that the statute was not intended to have the effect of a penal or criminal provision for the punishment of manslaughter committed by railroad corporations, for the public is as much in jeopardy and requires the protection of the criminal law as much in such cases, whether the deceased left or did not leave a widow and children. Such an unusual limitation on the administration of the criminal law is not to be implied. The only reasonable view is that the statute was intended to be remedial in its substantial character and only incidentally penal.

But whatever the holding of the Massachusetts court might be upon the precise point presented here, which could not well arise there with...

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18 cases
  • Wessman v. Boston & M, R. R.
    • United States
    • New Hampshire Supreme Court
    • May 6, 1930
    ...where the cases are collected. This relationship continued until she had a reasonable opportunity to leave the station. Hill v. Railroad, 77 N. H. 151, 89 A. 482, Ann. Cas. 1914C, 714. The defendant was bound to exercise ordinary care to have the station platform in reasonably safe conditio......
  • Frank L. Wellman, Admr. of Kate Stone's Estate v. Barney E. Mead
    • United States
    • Vermont Supreme Court
    • May 20, 1919
    ... ... comity in the enforcement of rights created by the ... legislation of sister states. Walsh v. Boston & Maine R. R. , 201 Mass. 527, 88 N.E. 12. It is probable ... that the trend in this direction has been influenced to quite ... an extent by ... R ... Co. v. McCaskell , 98 Miss. 20, 53 So. 348; ... Loucks v. Standard Oil Co. , 224 N.Y. 99, ... 120 N.E. 198. In Hill v. Boston & Maine R ... R. , 77 N.H. 151, 89 A. 482, Ann. Cas. 1914C, 714, the ... rule in [93 Vt. 328] Huntington v. Attrill ... is quoted ... ...
  • Daury v. Ferraro
    • United States
    • Connecticut Supreme Court
    • September 28, 1928
    ... ... are: Carey v. Berkshire Railroad, 1 Cush. (Mass.) ... 475, 48 Am.Dec. 616; Commonwealth v. Boston & L. R ... Corp., 134 Mass. 211; ... [143 A. 631] ... Hudson v. Lynn & Boston Railroad, 185 Mass. 516, 71 ... N.E. 66; Merrill v. Eastern ... R. R. v. Hurd (C. C. A.) 108 ... F. 116, 56 L.R.A. 193, had reached a contrary conclusion. In ... January, 1914, the New Hampshire court in Hill, ... Administratrix, v. B. & M. R. R., 77 N.H. 151, 89 A ... 482, Ann.Cas. 1914C, 714, construed this statute as Mr ... Justice Beach did in his ... ...
  • Sullivan v. Hustis
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 4, 1921
    ...1123; Huntington v. Attrill, [1893] A. C. 150; Loucks v. Standard Oil Co. of New York, 224 N. Y. 99, 120 N. E. 198;Hill v. Boston & Maine Railroad, 77 N. H. 151, 89 Atl. 482, Ann. Cas. 1914C, 714;Boston & Maine Railroad v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193;Whitlow v. Nash......
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