Lyman v. Boston & A. R. Co.

• Decision Date: 07 November 1895
• Docket Number: 385.
• Citation: 70 F. 409
• Parties: LYMAN v. BOSTON & A.R. CO.
• Court: U.S. District Court — District of Massachusetts

70 F. 409

LYMAN v. BOSTON & A.R. CO.

No. 385.

United States Circuit Court, D. Massachusetts.

November 7, 1895

The Massachusetts statute provides that in cases of death resulting from negligence of a railroad or street-railway corporation, or from the unfitness, gross negligence, or carelessness of its servants or agents, the corporation shall be 'punished by fine of not less than $500, nor more than $5,000, to be recovered by indictment,' and paid to the executor or administrator for the use of the widow, children *or next of kin. The statute further provides that railroad corporations shall also be liable in damages not exceeding $5,000, nor less than $500, 'to be assessed with reference to the degree of culpability of the corporation or of its servants or agents,' and to be recovered by an action of tort by the executor or administrator, for the use of the same persons. But only one of these remedies can be pursued. Held, that an action at law by the executor or administrator under the statute is in effect an action to recover a penalty under a state statute, and therefore cannot be maintained in a federal court, because (1) the statute viewed in the light of the decisions of the supreme judicial court of Massachusetts, and also in the light of its general purposes and nature, and the character of the procedure prescribed, is a penal statute, and because (2) the action is not a 'civil action,' within the meaning of the acts defining the jurisdiction of the federal courts.

This was an action at law brought by George R. Lyman, a citizen of the state of Minnesota, against the Boston & Albany Railroad Company. The first count of the declaration is as follows 'And now comes the plaintiff in the above-entitled action and says that he is administrator of the estate of Henry C Ives, late of Chicago, in the state of Illinois, having been appointed such administrator by the probate court in and for the county of Suffolk, within the commonwealth of Massachusetts, on the 16th day of August, A.D. 1894; that on the 31st day of August, A.D. 1893, the plaintiff's intestate, Harry C. Ives, was a passenger in a railroad car operated by the defendant company; that while crossing a bridge near Chester, in said commonwealth, the car in which the plaintiff's intestate was traveling was precipitated into a stream below, owing to the breaking or giving away of said bridge, and the plaintiff's intestate was thereby killed on said 31st day of August. And the plaintiff says that the said bridge was a portion of the road of the defendant corporation; that it was owned and managed by it, and that it was the duty of the defendant to take care that the said bridge was in proper condition. And the plaintiff further says that, owing to the negligence and carelessness of the defendant corporation, said bridge was in a defective condition, and that it was owing to such defective condition that the plaintiff's intestate lost his life as aforesaid, he being at the time in the exercise of due care. Wherefore the plaintiff brings this action, as provided by section 212 of chapter 112 of the Public Statutes of this commonwealth, and claims damages of the defendant corporation as therein provided. ' The second count is in the same words, except that it alleges that, owing to the ignorance and gross negligence and carelessness of the servants and agents of the defendant corporation while engaged in its business, said bridge was in a defective condition, and that it was owing to such defective condition that the plaintiff's intestate lost his life as aforesaid, he being at the time in the exercise of due care. Both counts have been amended by adding the following allegation: 'And the plaintiff says that his intestate, at the time of his death, while a passenger as aforesaid, was traveling upon a pass which had been given to him by the defendant corporation; said pass entitling the plaintiff's intestate to free passage over the defendant's road, from Albany, in the state of New York, to Boston, in the state of Massachusetts, and returning from said Boston to said Albany. Said pass had printed upon the back of it the following words: 'The person who accepts this pass thereby assumes all risks of personal injury and of loss or damage of property while using it, and if offered by any other than the individual named the conductor will take up and collect fare.''

The defendant demurs and assigns cause as follows: '(1) Because the plaintiff's intestate in this case is not alleged to have occupied such a relation towards the defendant as entitles the plaintiff to recover in this case. (2) Because this action is brought to recover a penalty under the laws of the commonwealth of Massachusetts, as alleged in the declaration, and, therefore, cannot be maintained in this court.'

The statute of Massachusetts under which the action is brought is as follows: '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 nor 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 in equal moieties; or, if there are no children, to the use of the widow; or, if no widow, to the use of the next of kin; but a corporation operating a railroad shall not be so liable for the loss of life by a person while walking or being upon its road contrary to law or to the reasonable rules and regulations of the corporation. 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. But no executor or administrator shall, for the same cause, avail himself of more than one of the remedies given by this section.'

Woodward Hudson (Samuel Hoar with him), for the defendant.

The defendant claims that the plaintiff cannot recover in this court; First, because the plaintiff's intestate assumed all the risks of injury by traveling on the free pass, and so cannot recover; second, because this action is brought to enforce a penalty created by the law of Massachusetts, and is not within the jurisdiction of this court.

I. The contract on the free pass upon which the deceased was traveling when he was killed prevents the plaintiff from recovering for the death. The question has never been decided by the supreme court of the United States, but is expressly left open by that court until it shall become necessary to decide it. Railroad Co. v. Lockwood, 17 Wall. 357; Railway Co. v. Stevens, 95 U.S. 655. It has been held that such a contract is valid in the following cases Wells v. Railroad Co., 24 N.Y. 181; Perkins v. Railroad Co., Id. 196; Kinney v. Railroad Co., 32 N.J.Law, 407, 34 N.J.Law, 513; Alexander v. Railway Co., 33 U.C.Q.B. 474, 35 U.C.Q.B. 453; Griswold v. Railroad Co., 53 Conn. 371, 4 A. 261; Ulrich v. Railroad Co., 108 N.Y. 80, 15 N.E. 60; Quimby v. Railroad Co., 150 Mass. 365, 23 N.E. 205; Muldoon v. Railway Co., 7 Wash. 528, 35 P. 422; Rogers v. Steamboat Co., 86 Me. 261, 29 A. 1069. It is also held that the fact of traveling upon such a pass is enough to make the contract printed thereon binding on the passenger, without proof whether he read it or not. Wells v. Railroad Co., 24 N.Y. 181; Alexander v. Railway Co., 33 U.C.Q.B. 474, 35 U.C.Q.B. 453; Boylan v. Railroad Co., 132 U.S. 146, 10 Sup.Ct. 50; Quimby v. Railroad Co., 150 Mass. 365, 23 N.E. 205; Fonseca v. Steamship Co., 153 Mass. 553, 27 N.E. 665; Rogers v. Steamboat Co., 86 Me. 261, 29 A. 1069. It may be argued that, while this contract would have been a bar to a suit by the plaintiff's intestate, had he survived, it is no defense to this suit, based upon his death, following the suggestion made by the court in Doyle v. Railroad Co., 162 Mass. 66, 37 N.E. 770, where the court say they have not found it necessary to consider whether a release of damages for causing the death of a human being is or is not justified by public policy. But the principle has been recognized in the following decisions that it is not against public policy to enforce a release of damages for causing the death of a human being: Dibble v. Railroad Co., 25 Barb. 183; Perkins v. Railroad Co., 24 N.Y. 196; Bissell v. Railroad Co., 25 N.Y. 442; Kinney v. Railroad Co., 32 N.J.Law, 407, 34 N.J.Law, 513; Alexander v. Railway Co., 33 U.C.Q.B. 474, 35 U.C.Q.B. 453; Griffiths v. Earl of Dudley, 9 Q.B.Div. 357; Griswold v. Railroad Co., 53 Conn. 371, 4 A. 261; Price v. Railroad Co., 33 S.C. 556, 12 S.E. 413. The plaintiff, therefore, is barred from recovering in this case by the contract made between his intestate and the defendant, unless the court follows the decisions in Com. v. Vermont & M.R. Co., 108 Mass. 7, and Doyle v. Railroad Co., 162 Mass. 66, 37 N.E. 770, and holds that the suit at bar is for a penalty, and that the deceased could not release the defendant from liability for a penalty.

II. If this statute is penal, the penalty cannot be exacted by this court. It is well established by the...