Perkins v. Boston & A.R. Co.

• Decision Date: 17 November 1898
• Docket Number: 536.
• Citation: 90 F. 321
• Parties: PERKINS v. BOSTON & A.R. CO.
• Court: U.S. District Court — District of Massachusetts

90 F. 321

PERKINS v. BOSTON & A.R. CO.

No. 536.

United States Circuit Court, D. Massachusetts.

November 17, 1898

R. M Saltonstall, for plaintiff.

Woodward Hudson and Samuel Hoar, for defendant.

This was an action by Louis N. Perkins, administrator, a citizen of Connecticut, against the Boston & Albany Railroad Company to recover for the death of his intestate, who was an employe of defendant company, under Pub. St. Mass. c. 112, Sec. 212 as amended by Laws 1883, c. 243, which reads as follows:

'Sec. 212. If by reason of the negligence or carelessness of a corporation operating a railroad or street railway, or 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 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. And if an employee of such corporation being in the exercise of due care is killed under such circumstances as would have entitled the deceased to maintain an action for damages against such corporation, if death had not resulted, the corporation shall be liable in the same manner and to the same extent as it would have been if the deceased had not been an employee. But no executor or administrator shall, for the same cause, avail himself of more than one of the remedies given by this section.'

PUTNAM Circuit Judge.

The parties agree that this suit is based on the Public Statutes of Massachusetts (chapter 112, Sec. 212), as amended by the act of 188...