New York Cent. & H.R.R. Co. v. Price

• Decision Date: 15 January 1908
• Docket Number: 651.
• Citation: 159 F. 330
• Parties: NEW YORK CENT. & H.R.R. CO. v. PRICE.
• Court: U.S. Court of Appeals — First Circuit

159 F. 330

NEW YORK CENT. & H.R.R. CO. v. PRICE.

No. 651.

United States Court of Appeals, First Circuit.

January 15, 1908

George L. Mayberry and George P. Furber, for plaintiff in error.

Grenville S. MacFarland (John P. Feeney, on the brief), for defendant in error.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN District Judge.

This is a writ of error brought by the railroad company to review the rulings of the Circuit Court in an action of tort. The plaintiff's intestate, a boy 6 1/2 years old, was playing upon an open lot in East Boston. The lot adjoined the defendant's railroad and was unfenced. The boy struck a plaything so that it fell on or near the track, and ran after it upon the defendant's land, where he was struck by a freight train, receiving injuries from which, after conscious suffering, he died in four or five hours. The declaration charged:

'That the defendant negligently failed to maintain a suitable fence along its tracks as required by the laws of Massachusetts. That said railroad tracks at said place ran at grade by a lot of land where were situated the homes of many young children, and where the children were accustomed to play. That the said tracks were in other respects so situated with regard to said land on which children were accustomed to play that the defendant knew, or ought to have known, that they were a source of peculiar danger and inducement to young children in the absence of such a fence as was required by law.'

The Massachusetts statute relating to the fencing of railroads is found in Revised Laws of Massachusetts, c. 111, Sec. 120:

'Every railroad corporation shall erect and maintain suitable fences, with convenient bars, gates or openings therein upon both sides of the entire length of its railroad except at the crossings of a public way or in places where the convenient use of the road would be thereby obstructed, and except at places where, and so long as, it is specially exempted from the duty of so doing by the board. Such an exemption granted prior to the first day of August in the year eighteen hundred and eighty-two shall not be revoked except upon new proceedings had under the provisions of this section, notice of which shall be given to the corporation interested, and published once in each of three successive weeks in a newspaper published in each county in which the land is situated. The corporation shall also construct and maintain sufficient barriers, where it is necessary and practicable so to do, to prevent the entrance of cattle upon the road. A corporation which unreasonably neglects to comply with the provisions of this and the following section shall, for every such neglect, forfeit not more than two hundred dollars for every month during which the neglect continues; and the Supreme Judicial Court shall have jurisdiction in equity to compel the corporation to comply with such provisions, and, upon such neglect, to restrain and prohibit it from crossing a highway or town way, or from using any land, until such provisions shall have been complied with.'

The railroad company, now plaintiff in error, contends that this statute imposed upon the railroad company no duty to the plaintiff's intestate, and that such duty as is imposed upon the railroad company exists only in favor of adjoining owners and occupants. It relies upon Byrnes v. Boston & Maine Railroad, 181 Mass. 322, 324, 63 N.E. 897, 898, in which it was said:

'But the omission to fence does not render a railroad liable except as against adjoining owners; and if a horse escapes from the highway on to an unfenced lot, and thence to the railroad where it is injured, the owner cannot recover unless there was reckless or wanton misconduct on the part of those in charge of the train. ' Maynard v. Boston & Maine Railroad, 115 Mass. 458, 15 Am.Rep. 119; McDonnell v. Pittsfield & North Adams Railroad, 115 Mass. 564; Darling v. Boston & Albany Railroad Company, 121 Mass. 118.

It was also said:

'The object of the statute is expressed to be to 'prevent the entrance of cattle upon the road,' and cases that have arisen under it are all cases of this kind.'

The plaintiff in error also cites Morrissey v. Eastern Railroad Company, 126 Mass. 377, 30 Am.Rep. 686; Sullivan v. Boston & Albany Railroad Company, 156 Mass. 378, 31 N.E. 128; Gay v. Essex Electric Street Railway Company, 159 Mass. 238, 34 N.E. 186, 21 L.R.A. 448, 38 Am.St.Rep. 415; Daniels v. New York & New England Railroad Company, 154 Mass. 349, 28 N.E. 283, 13 L.R.A. 248, 26 Am.St.Rep. 253; Dalin v. Worcester Consolidated Street Railway Company, 188 Mass. 344, 74 N.E. 597.

We cannot escape the force of the case of Byrnes v. Boston & Maine Railroad, 181 Mass. 322, 63 N.E. 897, by disregarding as dictum the expression 'the omission to fence does not render a railroad company liable except as against adjoining owners. ' Assuming that the facts were such that no obligation to fence existed under the terms of the Massachusetts statute, and that the case so held, nevertheless, as an additional reason for its decision, the court construed the statute, and held that the obligations imposed by it were solely in favor of adjoining owners.

Decisions of the Supreme Court declare the rule:

'Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can, in no just sense, be called mere dictum. ' Union Pacific Company v. Mason City Company, 199 U.S. 160, 166, 26 Sup.Ct. 19, 50 L.Ed. 134; Railroad Companies v. Schutte, 103 U.S. 118, 26 L.Ed. 327.

In Smiley v. Kansas, 196 U.S. 447, 455, 25 Sup.Ct. 289, 290, 49 L.Ed. 546, it was said:

'It is well settled that in cases of this kind the interpretation placed by the highest court of the state upon its statutes is conclusive here. We accept the construction given to a state statute by that court. St. Louis, Iron Mountain & St. Paul Railway Company v. Paul, 173 U.S. 404, 408, 19 Sup.Ct. 419, 43 L.Ed. 746; Missouri, Kansas & Texas Railway Company v. McCann, 174 U.S. 580, 586, 19 Sup.Ct. 755, 43 L.Ed. 1093; Tullis v. Lake Erie & Western Railroad Company, 175 U.S. 348, 20 Sup.Ct. 136, 44 L.Ed. 192. Nor is it material that the state court ascertains the meaning and scope of the statute as well as its validity by pursuing a different rule of construction from what we recognize.'

It may be conceded that there is ground for doubt whether the construction placed upon this statute by the Massachusetts court is not narrower than its terms require. It would be a reasonable construction to say that fences are required not only for the exclusion of cattle and for the benefit of adjoining owners, but for a notice and signal of danger, and as an obstacle and preventive of harm in urban districts frequented by children. One of the learned justices in Williams v. Great Western Railway Company, L.R. 9 Excheq. 157, said of a statute imposing a general duty of this character:

'It is not for us to speculate on what was the precise intention of the Legislature when they required that there should be a gate or stile on a footpath crossing on a level. It is sufficient to say that the defendants have neglected to comply with the enactment. * * * Then can it be inferred with reasonable probability that the accident occurred by reasons of that negligence so as to make that a question for the jury?'

See, also, Hayes v. Michigan Central Railroad Company, 111 U.S. 228, 240, 4 Sup.Ct. 369, 28 L.Ed. 410; Baltimore & Potomac Railroad Company v. Cumberland, 176 U.S. 232, 20 Sup.Ct. 380, 44 L.Ed. 447; Atchison, T. & S.F.R.R. Co. v. Reesman, 60 F. 370, 373, 9 C.C.A. 20, 23 L.R.A. 768.

Nevertheless there is a considerable conflict of decision as to the proper construction of statutes of this kind, and there are in other states decisions supporting the views of the Massachusetts court. We find it unnecessary to review these decisions, however, since we are of the opinion that the construction of the Massachusetts statute is a local question upon which we accept the decision of the local court.

The defendant in error also contends that, even if not required by statute to maintain a fence, the defendant below was, upon commonlaw principles, negligent in failing to do so under the conditions proved in this case. The contention is that, because children were accustomed to play in the vicinity of the railroad tracks, 'the defendant was bound to anticipate that children will be children,' and to take precautions to prevent them from thoughtlessly running upon its tracks.

We think it doubtful if the testimony in this case was sufficient to show that the lot upon which the boy was playing, and from which he ran upon the tracks, was a playground or a place on which numbers of children were accustomed to play. There was evidence that children in considerable numbers were in the habit of playing on the railroad property and along the tracks; but examination of the record does not show that the testimony was directed to the specific proposition that considerable numbers of children were in the habit of playing on the unfenced lot and of coming upon the tracks from this lot, so that the railroad company had special reason to regard this unfenced lot as an accustomed place of ingress for children thoughtlessly trespassing upon its tracks. Assuming, however, for the present, the sufficiency of the proof to establish the fact that this unfenced lot was a playground from which thoughtless children were in the habit of going upon the tracks, we have still an important question: Did this cast upon the railroad company the legal duty of erecting a fence to exclude such trespassers from its tracks, and does a failure...