Hudson v. Lynn & B.R. Co.

• Citation: 185 Mass. 510,71 N.E. 66
• Parties: HUDSON v. LYNN & B. R. CO.
• Decision Date: 18 May 1904
• Court: United States State Supreme Judicial Court of Massachusetts

185 Mass. 510

71 N.E. 66

HUDSON v. LYNN & B. R. CO.

Supreme Judicial Court of Massachusetts, Essex.

May 18, 1904

COUNSEL

Frank D. Allen and W. L. Van Kleeck, for plaintiff.

Henry F. Hurlburt and Damon E. Hall, for defendant.

OPINION

LORING J.

This is an action brought in 1898, under St. 1886, p. 117, c. 140, to recover a penalty for wrongfully causing the death of Joseph P. Pope, the plaintiff's intestate. The jury were warranted in finding that Pope took a car of the defendant at Scolly Square, Boston, for Lynn, about 8 o'clock in the evening of a day in September. He paid his first fare, and then fell into a stupor. When the car reached Revere, a second fare came due. The conductor tried to rouse him to collect the fare, without success, and, after collecting the other fares, in the language of one of the plaintiff's witnesses, 'he came back to him, and shook him and kicked him, and couldn't wake him up.' Thereupon the conductor and motorman put him off--'one took him by his head, and the other the feet'--and laid him down beside the tracks on the Lynn marshes. He was run over and killed by the same car on its return trip to Boston. Pope was a soldier in the regular army, quartered at Ft. Warren. The day of the accident was pay day, and Pope had been drinking on that afternoon. This was uncontradicted. But there was evidence from persons in the car with him that he did not appear to be intoxicated, and it may perhaps be assumed, if material, that the stupor could have been found not to be the result of drink.

The declaration contained six counts. Verdicts were directed for the defendant on the first three counts. The fifth count was a count for assault and battery. A verdict for the plaintiff in the sum of one dollar was returned on this count. With this the defendant is content. The fourth and sixth counts are stated to be counts under Pub. St. 1882, c. 112, § 212; but that act, so far as a civil remedy is given, applies to steam railroads only, and the corresponding act (St. 1886, p 117, c. 140) is doubtless intended. In the fourth count the plaintiff alleges that his 'intestate was then and there a person in the exercise of due diligence, and not a passenger,' and in the sixth count that he was a passenger.

It is plain that the intestate ceased to be entitled to the rights of a passenger on failing to pay the second fare when due. That ends the plaintiff's right to recover on the sixth count.

It is also plain that there was no evidence of negligence in the operation of the car on its return trip, when the plaintiff's intestate was run over and killed; and the plaintiff, to recover, must recover on the defendant's negligence in putting the intestate off as he was put off relying on the action of the car on its return trip as an instrument of injury which was the natural and probable result of his being put off. As to the case so made on the fourth count, the defendant asked the judge to direct a verdict for it. This was refused, and the case is here on a report as to the correctness of that, among other rulings. A majority of the court are of obinion that this ruling should have been given.

At common law the death of a human being is not the subject of an action for damages. This was established in this commonwealth by the case of Carey v. Berkshire Railroad, 1 Cush. 475. In that case, which was decided in the year 1848, the difference is pointed out between the way in which the common law has been changed, and the wrongful death of a person has been dealt with, by Parliament in England, and by the Legislature of this commonwealth. It is first pointed out that in England, by a then recent act (9 & 10 Vict. c. 93, passed in 1845, and usually called 'Lord Campbell's Act'), it was provided that if a person was killed under such circumstances that if he had been injured, and not killed, the defendant would have been liable, the executor or administrator of the person killed might bring an action for the benefit of the wife, husband, parent, or child, in which the jury might give such damages as they should think proportioned to the injury resulting from such death to the parties, respectively, for whose benefit the action is brought. It is then pointed out that in Massachusetts, by St. 1840, p. 224, c. 80, if the life of any passenger is lost through the wrongful act of a carrier, such carrier is made liable to a fine not exceeding $5,000, nor less than $500, to be recovered by indictment, to the use of the executor or administrator, for the benefit of the widow or heirs. This court then went on and said: 'These statutes are framed on different principles, and for different ends. The English statute gives damages, as such, and proportioned to the injury, to the husband or wife, parents and children, of any person whose death is caused by the wrongful act, neglect, or default of another person; adopting, to this extent, the principle on which it has been attempted to support the present actions. Our statute is confined to the death of passengers carried by certain enumerated modes of conveyance. A limited penalty is imposed as a punishment of carelessness in common carriers. And as this penalty is to be recovered by indictment, it is doubtless to be greater or smaller, within the prescribed maximum and minimum, according to the degree of blame which attaches to the defendants, and not according to the loss sustained by the widow and heirs of the deceased. The penalty, when thus recovered, is conferred on the widow and heirs, not as damages for their loss, but as a gratuity from the Commonwealth.' Indeed, the statute as to carriers (St. 1840, p. 224, c. 80) referred to in Carey v. Berkshire Railroad, was not the first act of the kind. The first act of this kind was a highway act passed a little over 50 years before the carrier act of 1840, p. 224, c. 80. That act provided that 'if the life of any person shall be lost through the deficiency of the way, causeway or bridge, or for want of rails on any bridge, the county, town or persons, who are by law obliged torepair and amend the same, shall be liable to be amerced in one hundred pounds, to be paid to the executor or administrator of the deceased, for the use of the heirs, devisees or creditors, upon a conviction before the court of general sessions of the peace, or Supreme Judicial Court, on a presentment or indictment of the grand jury.' St. 1786, p. 250, c. 81, § 7, now Rev. Laws, c. 51, § 17.

The system of imposing a punishment for wrongfully causing death, in place of giving to the family of the deceased an action for compensation, has been adhered to and extended since the decision in Carey v. Berkshire Railroad, when it applied only to travelers on defective highways and to passengers of common carriers. In 1853 it was extended to cases where a steam railroad had wrongfully caused the death of 'any person not being a passenger or employee * * * such person being in the exercise of due care and diligence.' St. 1853, p. 622, c. 414, now Rev. Laws, c. 111, § 267. In 1864 the statute as to steam railroads was extended to street railways (St. 1864, p. 166, c. 229, § 37, now Rev. Laws, c. 111, § 267); in 1871, to collisions at grade crossings where the statutory signals were not given (St. 1871, p. 699, c. 352, now Rev. Laws, c. 111, § 268); and in 1883 employés of steam railroads were put on the same footing, in case they were killed by a steam railroad, as persons who were not passengers (St. 1883, p. 243, c. 243, now Rev. Laws, c. 111, § 267). Employés of street railways had been put on that footing by St. 1864, p. 166, c. 229, § 37, and in 1897 all persons and corporations were put on the same basis as steam railroads and street railways. St. 1897, p. 388, c. 416, now Rev. Laws, c. 171, § 2. It will be plain, from what is hereafter said, that the employer's liability act, in what is now Rev. Laws, c. 106, § 73, which was taken from the English act following Lord Campbell's act, is so far modified by section 74, in spite of what is now section 72, as to be a part of this system.

In Commonwealth v. Boston & Lowell Railroad, 134 Mass 211, it was decided that, where a steam railroad wrongfully causes the death of a passenger, the case is within the act, and the railroad company is to be punished, although the passenger is not in the exercise of due care, and could not have recovered, had he been injured only, and not killed. This conclusion was reached on the ground that under the Massachusetts system the corporation is to be punished for wrongfully causing the death of a passenger or other person described in the several acts, and that in this respect it is entirely different from the English system, which generally has been followed in nearly all the states of the United States other than Maine and New Hampshire. The reason for the decision is summed up in this sentence, at page 213: 'If the person whose negligence caused the death had been indicted for manslaughter, the negligence of the deceased would not have been a defense. Regina v. Longbottom, 3 Cox, C. C. 439. Regina v. Swindall, 2 Car. & K. 230.' It is also pointed out in the opinion in Commonwealth v. Boston & Lowell Railroad that the case of a death at a grade crossing, originally brought within the system by St. 1871, p. 699, c. 352, is another instance where the liability of the railroad to be punished is not coterminous with the right which the deceased would have had to damages, had he been injured only and not killed. In case of a death at a grade crossing, the railroad is punished, 'unless it is shown that, in addition to a mere want of ordinary care, the person injured * * * was, at the time of the collision, guilty of gross or willful negligence, or was acting in violation of the...