McCabe v. American Woolen Co.

• Decision Date: 10 July 1903
• Docket Number: 1,271.
• Citation: 124 F. 283
• Parties: McCABE v. AMERICAN WOOLEN CO.
• Court: U.S. District Court — District of Massachusetts

124 F. 283

McCABE v. AMERICAN WOOLEN CO.

No. 1,271.

United States Circuit Court, D. Massachusetts.

July 10, 1903

James H. Rickard, Jr., for plaintiff.

Whipple Sears & Ogden, for defendant.

PUTNAM Circuit Judge.

This case is based on statutes of Massachusetts which are not represented by section 2, c. 171, p. 1544, of the Revised Laws of Massachusetts of 1902, as follows:

'If a person or corporation by his or its negligence, or by the gross negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is in the exercise of due care and not in his or its employment or service, he or it shall be liable in damages in the sum of not less than five hundred nor more than five thousand dollars, to be assessed with reference to the degree of his or its culpability or of that of its agents or servants, to be recovered in an action of tort commenced within one year after the injury which caused the death, by the executor or administrator of the deceased 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.'

It was decided in the Circuit Court of Appeals for this Circuit, in Boston & Maine Railroad v. Hurd, 108 F. 116, 47 C.C.A. 615, 56 L.R.A. 193, that the statute of Massachusetts of this character are remedial, furnishing a remedy at civil law, so that the federal courts have jurisdiction under them.

Patrick F. McCabe was a minor at the date to which the pleadings in this case related. He was then a resident of Blackstone, in the county of Worcester. The declaration alleges as follows:

'That defendant is a corporation organized under the laws of the state of New Jersey, and a citizen of said state of New Jersey; that the defendant, on the 28th day of May, A.D. 1902, and for a long time prior thereto; was the owner of a certain tract of land, lying in said Blackstone, near the Blackstone River, which land was intersected by streets and highways, and around and near which ran streets and highways, and upon which the defendant maintained numerous dwelling houses, which it rented to many persons and families; that said land is situated in a populous portion of said town, and closely adjoining said land were many other dwelling houses occupied by many other persons and families, in one of which last-mentioned houses said deceased dwelt on said date, and had dwelt for a long time theretofore; and that many of the said persons so occupying the said dwelling houses of the defendant and the said other dwelling houses were children of tender years, as the defendant well knew, or by the exercise of due diligence might have known.

'And the plaintiff further says that upon and in said land of the defendant the defendant on said date, and for a long time theretofore, maintained an artificial canal or mill trench, the water to supply which was taken from said Blackstone river at a point above said land of the defendant, and flowed thence through and across said land, and across St. Paul street, so called, one of the highways above mentioned, in close proximity to said dwelling houses and to the house in which said deceased lived; that at the upper part of said canal or mill trench and near the place of the fatality hereinafter set forth, the defendant maintained headgates, so called, through and under which the water in said canal flowed; that below said headgates, at the place where said fatality occurred, the banks of said canal or mill trench were steep and precipitous, and the water therein was deep and flowed with a swift current, by reason of all of which said canal or mill trench was dangerous to children who might be upon or near the banks thereof, as the defendant well knew, or by the use of due diligence might have known.

'And the plaintiff further says that, because of the location and character of said canal or mill trench, it was an object attractive and enticing to children, and constituted an allurement, inducement, and invitation to children to frequent the banks thereof for the purpose of amusement and play, and that the said children dwelling in the defendant's said houses and in the said other houses in the vicinity were in the habit of frequenting said banks for the purpose of amusement and play, all of which the defendant well knew, or by the use of due diligence might have known.

'And the plaintiff further says that by reason of the premises it became and was the duty of the defendant to maintain about and upon said canal or mill trench proper fences, coverings, or other safeguards to prevent children so frequenting said banks, or being thereon as a result of the defendant's said allurement, inducement, and invitation, from reaching the water in said canal or mill trench, and so to keep them from the danger of injury or death by falling into said canal; but that the defendant, wholly neglecting its said duty, negligently and carelessly failed to provide any such fences, coverings, or other safeguards, and permitted its said canal or mill trench to remain and be unfenced, unguarded, uncovered, and open, so that children from the defendant's said dwelling houses and from the said other dwelling houses in the vicinity could feely pass onto and across said land to said canal or mill trench, both directly from the defendant's said dwelling houses and from the said streets and highways which intersect and lie about said land.

'And the plaintiff further says that on said 28th day of May, A.D 1902, said Patrick F. McCabe was a child of tender years, to wit, of the age of five years, and, being allured, enticed, attracted, and invited to said canal or mill trench as aforesaid, was, by reason of the said negligence of the defendant, upon the bank of said canal or mill trench, near said headgates, engaged in play, and while there by reason of said negligence of the defendant, the said Patrick F. McCabe, while in the exercise of due...