Holland v. Lynn & B.R. Co.
| Decision Date | 09 May 1887 |
| Citation | 11 N.E. 674,144 Mass. 425 |
| Parties | HOLLAND, Adm'r v. Lynn & B.R. Co. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.T. Gallagher and J.F. Wheeler, for plaintiff.
OPINIONThe defects in plaintiff's declaration having been cured by amendment, except section 2 of plaintiff's demurrer, the only question to be presented to the court is whether the defendant is liable for causing the death of plaintiff's intestate in the manner alleged.
Under chapter 73, § 6, Pub.St., (the language of this section being found in Acts Mass.1881, c. 199, § 3,) what class of common carriers are included, if not the defendant? Bent v Inhabitants of Hubbardston, 138 Mass. 100.
A common carrier of passengers is one who undertakes for hire to carry all persons, indifferently, that may apply for passage. Stages, ships, steam-boats, ferries, omnibuses tramways, and street cars are common carriers of passengers. Thomp. Carr. 26, note, § 1, and cases cited; Vinton v Middlesex R.R., 11 Allen, 307; Feital v. Middlesex R.R., 109 Mass. 405; Wilton v. Middlesex R.R., 125 Mass. 133.
The allegations of the plaintiff's declaration are sufficient to sustain the cause of action.
The manifest endeavor and intention of the legislature, in St.1881, c. 199, was to grant a civil action at law against all corporations, so far as they could be enumerated, who were liable to cause the loss of human life. The manifest intention of the legislature was that, by the use of the general term "common carriers of passengers," tramways or railroads that did not come into section 1 of this act would be covered by that term, and the legislature of 1882 passed an act for consolidating the General Statutes, re-enacting the provisions of the act of 1881. It cannot be said that the legislature intended to relieve street railways from the provisions of an act that applied to steamboats, stage-coaches, omnibuses, ships, ferries, tramways, and steam railroads.
But, whatever may be the application of the act of 1881 to street railways generally, it can be held to apply to the defendant corporation, because by chapter 202 of the Acts of 1859, by which the defendant corporation was chartered, it is authorized to carry passengers for hire in public conveyances through Boston and adjoining cities; and by the powers given to defendant under that charter it came within the definition of "common carriers of passengers," in the general significance of that term.
See, also, St.1881, c. 199, § 3. The legislature must have intended that if a corporation like the defendant was not a railroad corporation within the view of the first section, that it must be at least a "common carrier of passengers" within the view of section 3.
The enactment of chapter 140 of the Acts of 1886 can be no evidence of the intention of a previous legislature, being a different body.
Had St.1886, c. 140, been passed at the same time as Pub.St. c. 73, § 6, and had its other provisions been the same, it might have been claimed that the general words "common carrier," in Pub.St., did not include the class of common carriers like the defendant, on the ground that a particular description excluded the general description. But here it is conclusive upon this cause of action, arising after the passage of the one, and before the passage of the other law, that, while under the first only passengers might sue, under St.1886, "a person, being in the exercise of due diligence, and not a passenger," might have remedy. Brown v. Pendergast, 7 Allen, 429.
But, aside from the charter of this defendant, plaintiff respectfully submits that section 1, c. 199, St.1881, applies as well to horse as steam railroads; and the enactment of chapter 199, not being an amendment of the street-railway law, and containing no restriction, must be taken to give the remedy by civil action in all cases where the remedy by indictment previously existed.
T.P. Proctor and E. Tappan, for defendant.
No such action for the death of a person can be brought at common law. Carey v. Berkshire R.R., 1 Cush. 475; Moran v. Hollings, 125 Mass. 93. The Public Statutes, as to railroads, (see Pub.St. c. 112, § 212,) do not give any such right of actions against street railways. This view of the statute is confirmed by the opinion of the legislature of 1886, (St.1886, c. 140,) where the right of such action in tort for death is first given against a street railway. Kelley v. Boston & M.R.R., 135 Mass. 448. There is no other statute in any way touching this subject, except that in relation to "common carriers and express companies." Pub.St. c. 73, § 6. But this section does not include actions against street railways. The history of legislation as to liability for loss of life shows that street railways are not included in the words "common carriers," as used in Pub.St. c. 73, § 6. Statutes must be construed strictly. 1 Bl.Comm. 88; Ellis v. Paige, 1 Pick. 43, 45; Nichols v. Squire, 5 Pick. 168, 169; Com. v. Kimball, 21 Pick. 373, 377. The only conclusion is that neither at common law, nor by the terms of any statute applicable to the matter, has the plaintiff any such remedy against the defendant as he seeks in his writ and declaration in this action.
The question presented in this case is whether, prior to St.1886, c. 140, a street-railway company was liable to an action of tort if, by reason of its negligence, the life of a passenger was lost. That statute was passed after the injury complained of in this case, and therefore has no application to the case. Kelley v. Boston & M.R.R., 135 Mass. 148.
The Public Statutes provide that "if, by reason of the negligence or carelessness of a corporation operating a railroad or street railway, or of the unfitness or gross negligence or carelessness of its servants or agents while engaged in its business, the life of a passenger, or of a person being in the exercise of due diligence, and not a passenger or in the employment of such corporation, is lost, the corporation shall be punished by fine of not less than five hundred or more than five thousand dollars, to be recovered by indictment prosecuted within one year from the time of the injury causing the death, and paid to the executor or administrator for the use of the widow and children of the deceased." Pub.St. c. 112, § 212. Under this provision a street-railway company is liable to an indictment if a life is lost by reason of its negligence, or the gross negligence of its servants. The same section further provides that, "if the corporation is a railroad corporation, it shall also be liable in damages, not exceeding five thousand nor less than five hundred dollars, to be assessed with reference to the degree of culpability of the corporation, or of its servants or agents, and to be recovered in an action of tort commenced, within one year from the injury causing the death, by the executor or administrator of the deceased person for the use of the persons hereinbefore specified in the case of an indictment."
It is clear that this provision does not apply to street-railway companies. The first section of the chapter provides that, in the construction of this and the following chapter "the phrase, 'street railway' shall mean a railroad or railway usually operated by animal power; 'railroad corporation' and 'railroad company' shall mean the corporation which lays out, constructs, maintains, or operates a railroad operated by steam-power 'street-railway company' shall mean a corporation by which a street railway is constructed, maintained, or operated." It is to be observed that the following chapter, which is the chapter concerning street-railway companies, makes no provision for an action of tort against such company if a life is lost by reason of its negligence, or the gross negligence of...
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