McLeod v. Connecticut & P.R. Co.

• Decision Date: 14 September 1886
• Parties: MALCOLM G. MCLEOD v. THE CONN. & PASS. R. R. R. CO
• Court: Vermont Supreme Court

6 A. 648

58 Vt. 727

MALCOLM G. MCLEOD v. THE CONN. & PASS. R. R. R. CO

Supreme Court of Vermont, Orleans County

September 14, 1886

Action on the case to recover for injuries claimed to have resulted through the defendant's alleged neglect to properly maintain a railway crossing across a highway, in accordance with the provisions of the statute law of the Province of Quebec. Heard on demurrer to two new counts, September Term 1884, Ross, J., presiding. Demurrer overruled, and counts adjudged sufficient.

First count: "In a plea of the case" * * * "the Connecticut and Passumpsic Rivers Railroad Company were the managers and operators of a certain railway in the town of Stanstead, in the county of Stanstead, in the Province of Quebec, and Dominion of Canada, known as and called the 'Massawippi Valley Railway,' which last named railway was duly chartered by the said Province of Quebec, and was duly constructed under said charter prior to the first day of January, A. D. 1883, and was on the 21st day of March, A. D 1883, aforesaid, managed, operated, and run by the aforesaid Connecticut and Passumpsic Rivers Railroad Company. And the plaintiff avers that by the laws of the aforesaid Province of Quebec, which were in full force and effect on the 21st day of March, 1883, and which laws had been in full force and effect for a long time prior to said 21st day of March, A. D 1883, it was and is provided among other things, that no part of a railway which crosses any highway in said Province of Quebec, without being carried over said railway by a bridge or under said railway by a tunnel, shall rise above or sink below the level of the highway more than one inch, and the plaintiff avers that on the 21st day of March, A. D. 1883, aforesaid, the said Massawippi Valley Railway, which was then managed, operated, and run by the aforesaid Connecticut and Passumpsic Rivers Railroad Company, as aforesaid, did cross a highway in the town of Stanstead aforesaid, without being carried over the same by a bridge, or under the same by a tunnel, and that on the day and year last aforesaid, at Stanstead aforesaid, the aforesaid Massawippi Valley Railway where it crosses the aforesaid highway as aforesaid, did rise more than one inch above the level of said highway, and did then and there rise above the level of said highway two and one half inches. And the plaintiff avers that on the 21st day of March, A. D. 1883, aforesaid, at Stanstead aforesaid, the plaintiff was passing and driving along and over the said high way where the same is crossed by the aforesaid railway as aforesaid, with his horse and sleigh, riding in his aforesaid sleigh and driving said horse in a prudent and careful manner, and with proper and reasonable skill, and that while so driving along said highway and over said railway where the same crosses said highway as aforesaid, by reason of the said railway rising above the level of the said highway more than one inch as aforesaid, the plaintiff was violently thrown from and out of his said sleigh, out and upon the said railway and upon the ground; that the said horse was by means of the premises then greatly scared and frightened and thereby then ran away with and overturned the said sleigh of the plaintiff, and that by means of which said several premises the plaintiff became and was greatly hurt, bruised, etc.; that the plaintiff by means of the premises became and was and still is greatly and permanently injured in his health, and lamed; and also by means of the premises the plaintiff was obliged to and did necessarily expend divers moneys. And the plaintiff avers that by the laws of the State of Vermont an action hath accrued to him, to have and recover from the defendant the aforesaid sums, damages, and his costs.

"And the said plaintiff declares against the said defendant in a further plea of the case for that heretofore, to wit: On, etc., the Connecticut and Passumpsic Rivers Railroad Company was a duly incorporated and organized company, under, and by virtue of the laws of the State of Vermont, and on the day and year last aforesaid, and for a long time prior thereto, the said Connecticut and Passumpsic Rivers Railroad Company were and had been the managers and operators of a certain railway in the town of Stanstead, etc., it was by the laws of said Province of Quebec, the duty of the said Connecticut and passumpsic Rivers Railroad Company to keep the said Massawippi Valley Railway where the same crossed any and all public highways, and was not carried over the same by a bridge or under the same by a tunnel in the said town of Stanstead, in good and sufficient condition and repair, both in its construction and state of repairs, for the safe passage of persons, teams, and travel over and across the same at all such highway crossings aforesaid. And the plaintiff avers that on the day and year last aforesaid, the said Massawippi Valley Railway crossed a certain public highway in said Stanstead, between the villages of Beebe Plain and Stanstead Plain, and was not carried over the same by a bridge nor under the same by a tunnel. And the plaintiff avers that on the day and year last aforesaid at said Stanstead, the said Connecticut and Passumpsic Rivers Railroad Company not regarding its said duty in that behalf suffered the said Massawippi Valley Railway, where the same crossed the said public highway in said town of Stanstead, between the villages of Beebe Plain and Stanstead Plain, in said town of Stanstead, as aforesaid, to be in an unsafe and bad condition and state of repairs, both as to its faulty construction, condition, and state of repairs. And the plaintiff avers that on the 21st day of March, A. D. 1883, aforesaid, he was passing and driving along and over the said highway, etc., and where said railway is not carried over said highway by a bridge nor under the same by a tunnel; and while so riding and driving along over and across said highway where the same was crossed by the said Massawippi Valley Railway, in said town of Stanstead, as aforesaid, he was by reason of the faulty and improper construction of said railway and the unsafe condition and want of repair thereof, at that place, violently thrown from and out of his said sleigh on to said railway and upon the ground, and thereby his said horse then and there became and was greatly frightened, and then and there ran away with and overturned the plaintiff's said sleigh, by reason of all which said several premises the plaintiff became and was greatly hurt, etc.; and thereby lost great gains and profits, which he might and otherwise would have made and acquired, and by means of said premises the plaintiff became and was and still is, greatly and permanently injured in his health. And the plaintiff avers that by virtue of the laws of the Province of Quebec aforesaid, an action hath accrued to him to have and recover from the said Connecticut and Passumpsic Rivers Railroad Company, the damages, costs, and expenses so occasioned to and sustained by him as aforesaid. All of which is to the damage of the said plaintiff ten thousand dollars. And the plaintiff avers that by virtue of the laws of the State of Vermont an action hath accrued to him to have and recover from the defendant the aforesaid sums, damages, and his costs."

Judgment of the County Court reversed, and judgment rendered that the demurred sustained and the declaration adjudged insufficient, and cause remanded.

Edwards, Dickerman & Young, for the defendant.

On principle as well as on authority, an action based upon municipal or internal police statutes of any country, must be instituted in the courts of the country that enacted the laws, whether the suit is to compel the execution of the provisions of such statute, or to recover damages for neglect to perform a duty imposed upon the defendant by such statute. When a cause of action could only have arisen in a particular place or country, it is local, and the venue must be laid therein. 1 Chit. Pl. 268; Worster v. Winnipiseogee Lake Co. 25 N.H. 525; Butterfield, qui tam. v. Windle, 4 East, 393; Mayor of Berwick v. Ewart, Wm. Bl. 1068; Saund Pl. & Ev. 412. An action for the breach of a custom or by-law of a town is local. Steph. N. P. 1181; Gould Pl. s. 107; Steph. Pl. 413; White v. Sanborn, 6 N.H. 220; Clark v. Scudder, 6 Gray, 122; Mayor of Berwick v. Shanks, 3 Bing. 459; Warren v. Webb, 1 Taunt. 379; Doulson v. Matthews, 4 Term. 503; Hunt v. Pownal, 9 Vt. 417. Neither of the counts in this declaration is sufficient in form. A plaintiff who relies upon a foreign statute or law for a recovery, or a defendant who relies upon the same for a defence, must recite the foreign statute or law in full, so that the court can be informed of all its provisions and conditions, and whether on the whole statute and the facts alleged, the party is entitled to judgment. Collett v. Lord Keith, 4 Esp. 212; 1 Chit. Pl. 216; Saund, Pl. & Ev. 525; Gould, Pl. s. 16; Brush v. Curtis, 4 Conn. 312; Hampstead v. Reed, 6 Conn. 480; Herring v. Selding, 2 Aik. 12; Peck v. Hibbard, 26 Vt. 698-766; Dic. Par. 60; Pickering v. Fisk, 6 Vt. 102.

Crane & Alfred, for the plaintiff.

The first new count sets out in hac verba the statute of the Province of Quebec, which directs in what manner railways where they cross highways, and are not carried over by a bridge, or under by a tunnel, shall be constructed and maintained. It further alleges that the railway of the defendant was not constructed or maintained as is provided in said statute. That by reason of said railway not having been constructed and maintained as is provided in said statute, the plaintiff was injured and suffered loss. Actions for personal torts are transitory in their nature, Herrick v. Minneapolis & St. L. R. R. Co. 11 Am. & ...