251 Mass. 255 | Mass. | 1925
This is an action of tort. It is brought to recover damages for the instant death of the plaintiff’s intestate, which occurred in September, 1919, by reason of the collision of an automobile driven by him while a traveller on a public way, with a locomotive engine, at a crossing at grade with tracks of the New York, New Haven and Hartford Railroad system during the period when it was under federal control pursuant to acts of Congress and a Proclamation of the President. 39 U. S. Sts. at Large, (c. 418) 619, 645. 40 U. S. Sts. at Large, (c. 25) 451. 40 U. S. Sts. at
The plaintiff relied upon two grounds of liability: (1) the alleged negligence of a crossing tender in the employ of the defendant and in charge of lowering gates to warn travellers of the approach of trains, and (2) the alleged failure on the part of those in control of the locomotive to give the signals required by St. 1906, c. 463, Part II, § 147 (now G. L. c.
The defendant seasonably filed a motion that a verdict be directed in its favor. That motion was denied. No grounds seem to have been stated at the trial on which it was urged that the motion ought to have been granted. It does not appear that the presiding judge required counsel for the defendant to specify the propositions of law on which he relied. Therefore the defendant in this court may raise any question of law actually involved in such motion, even though not referred to or not thought of at the trial. Parrot v. Mexican Central Railway, 207 Mass. 184, 190. Proctor v. Dillon, 235 Mass. 538, 540.
The defendant argues that the damages here sought to be recovered are in the nature of a penalty or fine and hence cannot be recovered of the defendant under the controlling federal statutes and rules.
The government of the United States was in control and operation of the railroad at the time here in question. It is only by reason of the federal law that any action can be brought against the defendant, and it can be maintained only for grounds and to the extent authorized by that law. The federal government cannot be impleaded in any courts except to the extent and upon the terms to which it has con
Resort must be had to the decisions of the Supreme Court of the United States to determine the nature and scope of the liability to which the defendant may be subjected. It was said in Director General of Railroads v. Kastenbaum, 263 U. S. 25, 27, after quoting § 10 of the Federal Control Act: “By General Order No. 50, the Executive so limited suits to be brought against carriers for injuries to person or property under the section as to exclude those for recovery of fines, penalties and forfeitures. As we said in Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554, 563:' The Government undertook as carrier to observe all existing laws; it undertook to compensate any person injured through a departure by its agents or servants from their duty under such law; but it did not undertake to punish itself for any departure by the imposition upon itself of fines and penalties or to permit any other sovereignty to punish it.’ ” It further was said in the opinion in the Ault case, at page 563: “there is nothing either in the purpose or the letter of these clauses [of the federal law3 to indicate that Congress intended to authorize suit against the Government for a penalty, if it should fail to perform the legal obligations imposed;” and at page 564: “The purpose for which the Government permitted itself to be sued was compensation, not punishment. In issuing General Order No. 50, the Director General was careful to confine the order to the limits set by the act, by concluding the first paragraph of the order, 'provided, however, that this order shall not apply to actions, suits, or proceedings for the recovery of fines, penalties, and forfeitures.’ Wherever the law, permitted compensatory damages they may be collected against the carrier while under federal control. . . . But double damages, penalties and forfeitures, which do not merely compensate but punish, are not within the purview of the statute.”
The nature of an action like that at bar for death damages under St. 1906, c. 463, Part I, § 63, and kindred statutes, has been discussed in numerous of our decisions. At com
We are unable to see our way to. hold, in view of our decisions already cited, that the present action does not fall within the classification of “actions, suits, or proceedings for the recovery of fines, penalties, and forfeitures.”
Doubtless the effect of § 10 of the Federal Control Act and General Order No. 50 is to deprive dependents of those killed by the operation of railroads by the United States in this Commonwealth of the money which they could have recovered from the railroads under private control, and of the kind of financial aid somewhat analogous to the compensa
A conclusion in harmony with the present decision was reached in construing a similar statute in Howard v. Davis, 209 Ala. 113, and in Pryor v. Payne, 209 Mo. App. 7; but see McDaniel v. Hines, 292 Mo. 401.
It may be that the exclusion of the United States in its operation of railroads from liability like that sought to be enforced in the present action was an oversight or unintentional. We cannot supply a casus omissus. We can only interpret the law as it was promulgated without regard to our own ideas of expediency. See v. Building Commissioner of Springfield, 246 Mass. 340, 343. United States v. Weitzel, 246 U. S. 533, 543.
It follows that the motion for a directed verdict ought to have been allowed. As this is decisive against the plaintiff’s right to recover, it is unnecessary to consider the other questions argued.
Exceptions sustained.