Menut v. Boston & M.R.r.
| Decision Date | 22 November 1910 |
| Citation | 92 N.E. 1032,207 Mass. 12 |
| Parties | MENUT v. BONSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E. M. Schwarzenberg and E. F. Schwarzenberg, for appellant.
H. F Hurlburt and Damon E. Hall, for appellee.
The plaintiff, having no cause of action at common law, seeks to hold the defendant in damages for personal injuries caused by a failure to comply with Rev. Laws, c. 111, § 120, now Acts 1906, c. 463, pt. 2, § 103, that Rust v. Low, 6 Mass. 90, 93; Thayer v. Arnold, 4 Metc. 589; Eames v. Salem & Lowell R R., 98 Mass. 560, 96 Am. Dec. 676; Baxter v. Boston & Worcester R. R., 102 Mass. 383; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335. It is not sufficient for the plaintiff to prove that the defendant failed to fence, and if this had been done he would not have been injured, but he must go further and show that the requirement of the statute was enacted for his benefit. The inquiry, therefore, is whether it was the defendant's duty to erect and maintain at the place of the accident a fence sufficient to have intercepted the plaintiff's fall, and prevented his injuries. If this is established the further averments of its negligence are admitted by the demurrer. The language imposing the duty does not define its scope, and to ascertain the proper construction, the statute must be read with the provisions of the original enactments from which it has been derived. The earlier acts of incorporation contain some provisions for adapting the railroad at the expense of the corporation to the grade of intersecting highways which must be raised or lowered to meet the change in level, and St. 1833, c. 187; 1834, c. 137, and St. 1835, c. 148, provided for the assessment of damages if the location was acquired by eminent domain, and that at grade crossings certain precautions should be taken for the safety of travelers on highways. But no attempt at a general system of statutory law for the construction and operation of railroads appears until the Rev. St. 1836, c. 39; Sp. Laws Mass. 1829, cc. 93, 94, 95; St. 1830, c. 4; St. 1831, cc. 55, 56, 57, 72; St. 1832, cc. 49, 80, 97; St. 1833, cc. 109, 116, 118; St. 1835, cc. 95, 111; St. 1836, cc. 187, 221, 236, 249, 267. The revision, however, did not require either party to fence, although under the general powers of the county commissioners, by whom damages were assessed, they could direct that, instead of an award in money to the landowner for the cost as in the taking of land for a highway, the corporation should provide and maintain the necessary fences. First Parish in North Bridgewater v. Plymouth, 8 Cush. 475; Morss v. Boston & Maine R. R., 2 Cush. 536; Boston & Worcester R. R. v. Old Colony R. R., 12 Cush. 605, 608, 609; Baxter v. Boston & Worcester R. R., 102 Mass. 383. If money damages were awarded, and the land remained unfenced, besides incurring the danger of injury to his cattle, for which he would have no remedy, the landowner also might be held liable to suit if passing to the track they caused the derailment of trains. Lyons v. Merrick, 105 Mass. 71, 76; Lovett v. South Danvers R. R., 9 Allen, 557, 562. But if either party was dissatisfied, and applied for a jury, the order was vacated, and as the verdict might not require the erection of fences the corporation could not be compelled to act, and the landowner must provide them.
It was to guard against such results in the future, as well as to furnish a remedy 'to any owner of land heretofore taken,' that St. 1841, c. 125, was passed. The corporation, in addition to the pecuniary damages assessed upon it, was now required Boston & Providence R. R. v. Doherty, 154 Mass. 314, 28 N.E. 277. By section 4, the commissioners were authorized, on 'the application of any owner of land heretofore taken' or of the selectmen of the town through which the railroad passed, to require suitable fences to be made and maintained by the corporation, 'as well for the benefit and security of such landowner as of travelers on such railroad,' unless the landowner already had received in the assessment of damages full compensation, or had agreed to make and maintain such fence, yet no right is conferred upon the corporation or the commissioners to compel him to fence, although compensated for the outlay, or where the land having been obtained by purchase the price paid was presumed to include the cost of fencing by the grantor. Morss v. Boston & Maine R. R., 2 Cush. 536; Stearns v. Old Colony & Fall River R. R., 1 Allen, 493. But as the corporation was not required to act unless ordered by the commissioners, and the landowner, content with the compensation received, could remain quiescent, while passengers might be exposed to great peril during transportation on a partially or wholly unfenced track, St. 1846, c. 271, § 3, to do away with this serious danger, directed, under a penalty provided by section 4, that 'every railroad corporation shall erect and maintain suitable fences with convenient bars, gates or openings therein, at such places as may reasonably be required upon both sides of the entire length of any railroad which they may hereafter construct, except at the crossings of any turnpike, highway or other way, or in places where the convenient use of the railroad would be obstructed thereby, and shall also construct and maintain sufficient barriers at such places as may be necessary where it is practical to do so to prevent the entrance of cattle upon the railroad.' See Boston & Worcester R. R. v. Old Colony R. R., 12 Cush. 605, 609. The duty thus imposed was subsequently made enforceable in equity by this court under St. 1855, c. 350, and these statutes having been consolidated in Gen. St. 1860, c. 63, §§ 40 to 43, and Acts 1874, c. 372, §§ 83, 84, have been uniformily construed, where the road was built prior to April 17, 1841, as requiring the owner to fence if his damages, or the price paid to him where the acquisition was by purchase, included the cost of fencing, and where the road was constructed after May 16, 1846, the corporation fenced the entire length of the railroad on both sides except in places where a fence would obstruct the convenient use of the railroad, or at crossings where the general public had a right of way. Morss v. Boston & Maine R. R., 2 Cush. 536; Stearns v. Old Colony R. R., 1 Allen, 493; Boston & Albany R. R. v. Briggs, 132 Mass. 24. The exemption, however, was repealed by St. 1879, c. 205, which finally put upon the corporation the absolute and sole duty of maintaining the fence, and where by either law or contract this burden before had been placed on the adjoining landowner, the corporation was required thereafter to erect such fences, or to keep them in repair if they had been erected, and could recover the reasonable cost in an action of contract, or by a lien upon the land for the labor and materials.
Pub St. 1882, c. 112, § 115, and Rev. Laws, c. 111, § 120, are re-enactments of these provision, which, from the first to the last enactment, prescribe neither the dimensions, meterial or mode of construction, except as may be inferred from the words that it shall be a 'suitable fence.' It is common observation that a railroad often runs through extensive tracts of woodland, and unimproved lands, and as a fence which there might be sufficient to comply with the statute would be wholly insufficient between coterminous owners of lands under cultivation, Eames v. Salem & Lowell R. R., 98 Mass. 560, 565, 96 Am. Dec. 676, decided, that the fence defined in Gen. St. c. 25, § 1, now Rev. Laws, c. 33, § 1, was not the standard of requirement. The 'security and benefit' of the landowner, and 'of travelers upon such railroad,' having been the words of the statute of 1841, there would seem to be no reasonable ground to question that, under the original act and subsequent statutes which indicate no change of purpose, a fence sufficient to turn the cattle of those whose lands adjoined the road was all that the Legislature intended. The railroad company also in the operation of its trains has the right to the exclusive use of its tracks, and is under no obligation to anticipate the intrusion of cattle which may have passed unlawfully to the location, even where there has been a...
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