Littlejohn v. Fitchburg R. Co.
| Citation | 20 N.E. 103,148 Mass. 478 |
| Parties | LITTLEJOHN v. FITCHBURG R. CO., (two cases.) |
| Decision Date | 27 February 1889 |
| Court | United States State Supreme Judicial Court of Massachusetts |
George H Torrey, for appellant.
Rauney & Clark, for respondent.
If this were an action to recover for personal injuries, brought by a passenger who had paid his fare, it would make no difference in the defendant's liability whether the injuries were caused by the negligence of those who were in a strict sense the defendant's servants, or by that of a third person who managed the road over which the defendant had undertaken to carry the plaintiff. McElroy v. Railroad Co., 4 Cush. 400; Eaton v. Railroad Co., 11 Allen 500; White v. Railroad Co., 136 Mass. 321, 325; Railroad Co. v. Barron, 5 Wall. 90, 104. And the case would not be altered by the fact that the person in charge was the commonwealth. Peters v. Rylands, 20 Pa.St. 497. There are weighty decisions, also, to the effect that in such an action the defendant is liable not only for negligence at the time of the accident, but for any defect in its appliances which might have been discovered at the time when they were made, although the defendant did not make them, and the defect could not have been discovered afterwards. Hegeman v. Railroad Co., 13 N.Y. 9; Pendleton v. Kinsley, 3 Cliff. 416, 421; Railroad Co. v. Anderson, 94 Pa.St. 351, 359; Francis v. Cockrell, L.R. 5 Q.B. 184, 501; Grote v. Railway Co., 2 Exch. 251, 255. Compare Ingalls v Bills, 9 Metc. 11. See Railroad Co. v. Roy, 102 U.S. 451; Hutch. Carr. §§ 509-512. And see Railroad Co. v. Huntley, 38 Mich. 537, 546, (citing Richardson v. Railway Co., L.R. 1 C.P.Div. 342.) Compare Wright v. Railway Co., L.R. 8 Exch. 137. In some of the cases it is intimated that the negligence of the third person is imputed to the carrier. White v. Railroad Co., Peters v. Rylands, and Railroad Co. v. Roy, ubi supra; Railway Co. v. Peyton, 106 Ill. 534, 540. And in some instances at least the declaration has alleged negligence on the part of the defendant only. See Railway Co. v. Blake, 7 Hurl. [20 N.E. 104] & N. 987; Buxton v. Railway Co., L.R. 3 Q.B. 549; Thomas v. Railway Co., L.R. 5 Q.B. 226, L.R. 6 Q.B. 266; Peters v. Ryland, ubi supra; Hegeman v. Railroad Co., 13 N.Y. 9, 10. In an early case it was said: "Everything is a negligence in a carrier which the law does not excuse." Dale v. Hall, 1 Wils. 281, 282. On the other hand, the extreme liability imposed by the foregoing decisions very frequently has been referred to the carrier's implied contract, or to what the passenger reasonably may understand that the carrier assumed. Thomas v. Railway Co., Francis v. Cockrell, Peters v. Rylands, and Eaton v. Railroad Co., ubi supra; Nolton v. Railroad Co., 15 N.Y. 444, 447. Compare Buxton v. Railway Co., ubi supra; Austin v. Railway Co., L.R. 2 Q.B. 442, 446. And some judges have pointed out that the liability could not stand on the carrier's negligence, and have suggested that the declaration ought to be varied accordingly. Thomas v. Railway Co., L.R. 6 Q.B. 266, 275, 40 Law J.Q.B. 89, 95.
These distinctions are not of much importance in actions at common law, brought by the passenger himself. But the present action is statutory and penal in its character. The statute does not extend the liability for personal injuries to those injuries which cause death, as in Little v. Dusenberry, 46 N.J.Law, 614, (where, also, so far as appears, the defendant may have been negligent;) it creates a liability of a different nature. The action which it gives to the administrator is merely a substitute for the indictment, also provided for; and it is expressly enacted that the damages shall be "assessed with reference to the degree of culpability of the corporation or of its agents or servants." Pub.St. c. 112, § 212. See Carey v. Railroad Co., 1 Cush. 475, 480; Com. v. Railroad Co., 108 Mass. 7, 12. This language imports that there must be some degree of culpability on the part of the corporation or of its servants, and is not satisfied by showing that the corporation assumed a contractual or quasi contractual responsibility for third persons, who were not its servants. Suppose, for instance, that the defect in the construction of the road was unknown both to the defendant and to the commonwealth, and could not have been discovered by either through the use of any degree of care, the fact that it was known to the private corporation that originally built the road could not be said to show culpability on the part of the defendant except by a willful misapplication of words. We go one step further. Supposing that the defect was known to the commonwealth, and was not known, and could not have been known, to the defendant, the defendant was not negligent, whatever might have been its liability at common law in this case or the last. We do not mean to intimate that the facts show any ground for this last supposition. The defendant was bound to know the visible facts concerning the track over which it carried its passengers. So far as appears, therefore, it must be taken to have known the facts which, with our present knowledge, we see pointed out the cause, or a part of the causes, of the disaster. But it was entitled to go to the jury on the question whether those facts before the accident would have indicated to a competent person, considering them with the care which is necessary when human life is involved, that the road was unsafe. And under this statute it was entitled to the second ruling asked.
The plaintiff does not contest the correctness of the ruling asked, but suggests that it was unnecessary, because it was asked only as one ground for taking the case from the jury and because it was undisputed that the improper condition of the road was visible. The two reasons offered are inconsistent with each other. We do not find any warrant for the first in the bill of exceptions; and with more hesitation we construe the...
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