134 Mass. 4 | Mass. | 1883
The principal question in this case is, whether an action can be maintained against the defendant, as manager of the Troy and Greenfield Railroad and the Hoosac Tunnel, to recover for an injury which occurred in consequence of defective construction, which was the work of his predecessor in office; or in consequence of the omission of his predecessor to build a necessary cattle-guard or barrier to keep animals from entering upon the railroad and passing along the track or the lands on the sides thereof, the presiding judge having ruled that the defendant might be held responsible for damages caused by the defective construction of the railroad while he was manager, but not for damages caused by such construction which was the work of a former manager. It is contended by the defendant, that such liability only exists in any case for negligence or default of the manager in reference to things which he could control without going to the Governor and Council for means or authority, as, for example, the selection and employment of men, the management of switches, &c.; and especially that this action, if maintainable at all, can only be maintained against the former manager. But an examination of the statutes has satisfied us that neither of these grounds of defence is well founded.
The legislation material to be considered began in 1875. At this time the railroad and tunnel were nearly ready to be opened for business. By the St. of 1875, e. 77, § 1, a manager was to be appointed “ to take charge of the Troy and Greenfield Railroad and the Hoosac Tunnel, and manage the same in behalf of the Commonwealth.” He was to be removable at the pleasure of the Governor and Council; and, in case of a vacancy from any cause, the vacancy was to be filled by a new appointment. The
Such was the state of the legislation at the time when the accident happened which is the subject of the present action; and the question to be determined -is a question of the true construction of the statutes. It is urged, in behalf of the defendant, that the Commonwealth cannot be impleaded in its own courts, except by its own consent, clearly manifested by an act of the Legislature. But, without now considering how far this doctrine is applicable to its agents and servants, we are of the opinion that the Legislature intended to give its consent that the manager of its railroad might be sued in cases like the present. In undertaking the operation of the railroad, it is reasonable to think that the same responsibilities were intended to be assumed as ordinary railroad corporations are obliged to assume. The first section of the St. of 1875, a. 77, recognizes and declares this intention. The Legislature might well deem it a narrow policy for the State to undertake such management, without making adequate provision for meeting the ordinary responsibilities which are incident to this kind of business. Many of these are imposed by the common law on all common carriers of passengers and goods. Their expediency and wisdom have been recognized by the Legislature. The State, while holding all other and competing lines to a full measure of common law and statutory responsibility, might well hesitate to say to the public, “ We invite your patronage for this line, but do not intend to furnish the same remedies, in case of loss or injury, as other lines are subject to.” Such a course might well be thought, on the one hand, to take an unfair advantage of other railroads,
It is urged upon our attention, that the manager has not the power to expend money on works of construction until appropriations are made for the purpose, and then only under direction of the Governor and Council. Conceding the point, what follows? Does it follow, if insufficient appropriations are made to keep the road in proper order, and to erect suitable cattle-guards and barriers, and if, by reason thereof, animals come upon the track, or persons are run over, or trains are ’thrown from the track, or losses or injuries of any kind occur, that there is no responsibility on the part of any one therefor ? We think not. It is suggested that there may be an application to the Legislature for relief. But this is not a legal remedy. Such an application is not made under any provisions of law, and its reception and the action to be taken upon it do not depend upon any rules of law, but upon the judgment, wisdom or favor of the Legislature itself.
We are also of the opinion that it was the intention of the Legislature to give this remedy, in cases where it properly exists at all, by an action brought against the manager who fills that position at the time when the remedy is sought; and that it is not limited to the particular manager through whose negligence or default the cause of action arose. Otherwise, a manager would be liable to be sued long after his retirement from office, when his official relations with the Commonwealth have ceased, and when he has no longer any interest or duty in relation to the
A like result is reached from a consideration of the relations of the Commonwealth, as an owner of a railroad, towards the public whose patronage it invites. The manager is in the nature of a sole or quasi sole corporation. Otherwise the remedy provided for any party aggrieved would be very imperfect. The original construction, or repairs and improvements, may be begun by one manager and finished by another. An investigation may be needed to determine whether work, clearly insufficient or defective, was done under one manager or another. There might also be a concurring negligence of two or more successive managers. Work or safeguards, originally sufficient, may become insufficient, either through natural decay or wear, or through the increase of business or population. The State cannot itself be sued, and did not intend to allow an action to be brought directly against itself. Nevertheless, it was to engage in the business of operating a railroad, through an officer called the manager, whose office was designed to be permanent. One manager might die, resign or be removed. The individual might change; but the office was to be permanent. To the public, the manager was put forward as the representative of the authority which owns the railroad. A liability was imposed on him by statute. In form, this was at the outset personal. In substance and effect, it was official. And, since the passage of the St. of 1878, the liability of his person and property is taken away. He is merely left as the person to be named as defendant in the suit, and charged with the duty of defending it; but with no personal responsibility for the payment of the judgment, and indeed, since the passage of the St. of 1879, with no power even to retain the earnings of the railroad for the purpose of satisfying it.
The next question is whether it was competent for the plaintiff to introduce the testimony of an expert to show his opinion that a cattle-guard or barrier was necessary at a particular point.
The instruction of the judge, as to the statutory duty of maintaining a fence or barrier at the place where the plaintiff’s horse entered upon the railroad, as modified, was in conformity to what the plaintiff now contends is the true construction of the statute; but the plaintiff insists -that the jury were nevertheless misled by the instruction, as originally given.
The instruction that, “if the plaintiff’s son was negligent in not keeping a firm hold on the halter, and this negligence was partly the cause of, and contributed to, the accident, the plaintiff cannot recover,” was right, so far as it went. The plaintiff, however, urges upon us that the alleged negligence of his agent was too remote to be properly considered as contributing to the injury to his horse. But no instruction upon this aspect of the question appears to have been asked for. If, through the negligence of the plaintiff’s agent, his horse got away, and ran, and was injured at the, distance and place shown by the plan which W'as put in evidence, and if it was found by the jury that the injury was likely to happen as a natural and probable consequence of such negligence, so that the negligence might in their judgment fairly be considered to be a contributory cause of the injury, the plaintiff was not entitled to recover. It is not a case
Exceptions sustained.
The judge, at the request of the defendant, instructed the jury as follows: “ If the place where the horse entered on the railroad was a part of the yard and grounds used for shifting trains in connection with the Shelburne Falls station, or was within the highways or approaches entering upon or crossing said yard and grounds, the statute relating to fences and barriers does not apply.” Upon objection being made by the plaintiff, the judge modified the instruction by instructing the jury that, if they found the place such as described, there was no statute which absolutely requires the erection of a fence or barrier there, but it w'as for them to determine whether the erection thereof was necessary and practicable.
The exceptions stated that the horse, after escaping from his keeper, ran a distance of six hundred and fifty feet before entering upon land of the railroad, and then ran five hundred and seventy feet to the bridge on which he was injured.