200 Mass. 8 | Mass. | 1908
The plaintiff’s declaration alleges that his intestate, while a passenger upon the defendant street railway, received an injury on September 24, 1906, by reason of the negligence of the defendant’s servants, from which she died on June 7, 1907, being survived by husband and children, and that the action is brought under statute 1907, c. 375, the writ being dated February 17, 1908. The question presented is whether this statute,
In determining this question, the origin and subsequent history
In 1871 by c. 352 of the acts of that year it was enacted that a railroad should be liable to indictment as provided by Gen. Sts. c. 63, § 98, for causing death by collision with its engines or cars at a grade crossing where sounding of a whistle or ringing of a bell was required and these signals were not given, unless the deceased, or those responsible for him, in addition to the want of ordinary care, was also guilty of gross or wilful negligence or acting in violation of the law and these contributed to the death. This relieved a plaintiff in one respect from a burden of proof, and imposed a heavy burden of proof upon the railroad as an affirmative defense. Commonwealth v. Boston & Maine Railroad, 133 Mass. 383. Manley v. Boston & Maine Railroad, 159 Mass. 493. McDonald v. New York Central & Hudson River Railroad, 186 Mass. 474. This provision has been retained without very material change, except that an action of tort has been also given, until the present time.
It is not necessary to trace the history of employers’ liability, St. 1887, c. 270, because it imposes liability upon all employers of labor (with certain exceptions), and contains, so far as this inquiry is concerned, no distinctions between different kinds of employers, and as to street railway companies does not furnish a remedy upon the same ground as St. 1907, c. 375 or c. 392.
The next change of importance was by St. 1897, c. 416, which subjected corporations operating gas or electric light plants or systems to an action of tort, where the life of a person, exercising due diligence and not an employee, was lost by the negligence of the corporation or the unfitness or gross negligence of its servants or agents, but this statute did not confer the remedy by indictment.
St. 1898, c. 565, provided an action of tort against any person or corporation whose negligence or the gross negligence of whose servants or agents caused the loss of life of a person, other than an employee, in the exercise of due care. This is the precursor of the statute under which the plaintiff claims, and is the first statute of the kind, which omits unfitness of the servant or agent as a ground of liability. This statute would not ordinarily be construed as- a repeal of existing statutes, as to common carriers of all kinds, because they might be liable for the death of a passenger, not in the exercise of due care. The statutes being remedial, it cannot be inferred that a repeal was intended by the enactment of a new statute imposing a more onerous burden of proof upon a plaintiff, without much clearer manifestation of legislative will than this statute shows. But the legislative intent can be best ascertained from its action in the compilation of the Revised Laws, where these two statutes were combined in c. 171, § 2, and the liability was based upon the negligence of the person or corporation causing the death or the gross negligence of its servants or agents, omitting again, as an express ground, unfitness of servants. The liability of railroads and street railways for causing the death of any person was included in a single section, R. L. c. 111, § 267, in substantially the same language as that before used. See also § 268. The liability of other com
In this state of the statute law it is plain, from the origin and history of the various acts of legislation and their collocation in this compilation, that five different classes of liability are established: first, liability for the death of employees; second, that of municipalities for death occurring by defects upon highways; third, that of railroads and street railways for causing the death of passengers and persons other than passengers, not employees, in the exercise of due care, except in the case of railroads causing death at a grade crossing where the statutory signals have been omitted, when the burden of proving the gross negligence of the deceased rests on the railroad, and of railroads, alone, for causing the death of employees, who, if not killed, might have recovered damages; fourth, that of other common carriers for the death of passengers only; and, fifth, that against all other persons and corporations for causing the death of others than employees. The three last classes were not intended to exist as concurrent remedies, giving an election between them to the persons entitled to maintain them, because there were important differences in the liability imposed by the several statutes. It is unlikely that the Legislature would by express enactment impose different civil liabilities for the same act for the benefit of the same persons. The railroad and street railway and other common carriers were liable for death occasioned by the unfitness of their employees, while the last mentioned class of persons was not, by the express phrase of the statute, made so liable. Whether this makes a substantial difference in the rights of the parties may be open to inquiry when the proper occasion arises. Railroads, street railways and other common carriers were liable for the death of a passenger, even if such passenger was not in the exercise of due care, while in the last class due care on the part of the person deceased was a condition precedent to recovery. Again, the remedy for indictment was provided against railroads and street railways, while only the action of tort exists against the other persons liable. And,
In the light of this situation we proceed to examine the subsequent legislation. The general railroad law was revised and re:enacted by St. 1906,, c. 463, of which Part I. § 63 .is almost identical with R. L. c. Ill, § 267. St. 1907, c. 392, amended St. 1906, c. 463, Part I. § 63, by increasing the maximum of liability in case of death of a person other than an employee from $5,000 to $10,000, and by striking out the word “ gross ” before “ negligence.” St. 1907, c. 375, under which the plaintiff claims to recover, is an amendment of R. L. c. 171, § 2. It makes a similar increase of maximum liability and change in the degree of negligence of employees, for which a defendant may be liable. In effect both of these amending statutes are the same as if they had been originally enacted in the Revised Laws in the form in which they now appear. Bartley v. Boston & Northern Street Railway, 198 Mass. 163. Therefore, the same rules of construction are applicable as if both statutes were enacted at the same time and as a part of the same general statutory scheme. The liability of common carriers other than railroads and street railways established by R. L. c. 70, § 6, has been unchanged. The principle of interpretation is well established, that statutes alleged to be inconsistent with each other, in whole or in part, must be so construed as to give reasonable effect to both, unless there be some positive repugnancy between them. United States v. Lee Yen Tai, 185 U. S. 213. Pollock v. Lands Improvement Co. 37 Ch. D. 661. Thorpe v. Adams, L. R. 6 C. P. 125. Hill v. Hall, 1 Ex. D. 411. Copeland v. Springfield, 166 Mass. 498. Brown v. Lowell, 8 Met. 172.
This review of the statutes demonstrates that the Legislature has always, in the respects now under consideration, treated railroads and street railways as separate classes of corporations, not always upon the same basis, and has generally held them to a higher degree of liability than other persons or corporations. This legislative policy continues in the statutes as they
The conclusion we have reached gains strong support from the fact that these several provisions are all enacted in a general compilation of the body of statute law of the Commonwealth, which was first made by a commission of three learned lawyers, after a labor of about five years, whose report shows no indication of a thought of inconsistency or duplication of remedies, and was subjected to prolonged examination by a joint special committee of the General Court sitting after the close of the regular session, Resolves of 1901, c. Ill, and from the further fact that both the railroad and street railway statute and the general death liability statute were re-enacted in a new form, as before pointed out, by the Legislature of 1907. Arguments which might have plausibility touching detached statutes, passed at different sessions of the Legislature, have no force as to such a body of law. It is inconceivable that these divers provisions for differing grades of liability could exist without deliberate intention. The view we take upon this question renders it unnecessary to discuss the other defense raised.
Judgment affirmed.
St. 1907, c. 375, is entitled “ An Act relative to the recovery of damages for death caused by the negligence of persons or corporations, or of the agents or servants thereof.” Section 2. provided that the act should take effect upon its passage. Section 1 amended R. L. c. 171, § 2, to read as follows : “ If a person or corporation by his or its negligence, or by the negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is in the exercise of due care and not in his or its employment or service, he or it shall be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars to be assessed with reference to the degree of his or its culpability or of that of his or its agents or servants, to be recovered in an action of tort, commenced within two years after the injury which caused the death, by the executor or administrator of the deceased, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow: or, if there is no widow, the whole to the use of the next of kin.”
St. 1907, c. 392, is entitled “ An. Act to increase the penalty imposed on a railroad or street railway corporation for loss of life through its negligence.” Section 2 provided “ This act shall not affect any suit or proceeding now pending, or any cause of action or ground of indictment existing prior to the passage of this act.” Section 1 amended St. 1906, c. 463, Part I. § 63, to read as follows: “If a corporation which operates a railroad or a street railway, by reason of its negligence or by reason of the unfitness or negligence of its agents or servants while engaged in its business, causes the death of a passenger, or of a person who is in the exercise of due care and who is not a passenger or in the employ of such corporation, it shall be punished by a fine of not less than five hundred nor more than ten thousand dollars which shall be recovered by an indictment prosecuted within one year after the time of the injury which caused the death, and shall be paid to the executor or administrator, one half thereof to the use of the widow and one half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or if there is no widow, the whole to the next of kin; but a corporation which operates a railroad shall not be so liable for the death of a person while walking or being upon its railroad contrary to law or to the reasonable rules and regulations of the corporation. Such corporation shall also be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars, which shall be assessed with reference to the degree of culpability of the corporation or of its servants or agents, and shall be recovered in an action of tort, begun within one year after the injury which caused the death, by the executor or administrator of the deceased for the use of the persons hereinbefore specified in the case of an indictment. If an employee of a railroad corporation, being in the exercise of due care, is killed under such circumstances as would have entitled him to maintain an action for damages against such corporation if death had not resulted, the corporation shall be liable in the sum of not less than five hundred nor more than five thousand dollars, in the same manner 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 the provisions of this section.”