193 Mass. 280 | Mass. | 1906
It is to be noted that there is no allegation that the plaintiff’s intestate entered the train for the purpose of serving a warrant for the arrest of any person whom he believed to be there, nor that he had any reasonable ground to believe that there was being committed upon the train any breach of the peace or other crime, which required him to enter for the purpose of preserving public order, nor that there were upon the train persons who had committed a felony or any of the misdemeanors for which under the statutes it is lawful for a constable to arrest without a warrant. See R. L. c. 11, § 223; c. 46, §§ 7, 13; c. 52, § 8; c. 57, § 93; c. 66, § 5; c. 75, § 128; c. 91, §§ 4, 123, 134; c. 100, § 86; c. 108, §§ 10, 17, 23; c. 111, § 260; c. 166, § 2; c. 204, § 20; c. 208, §§ 109, 121; c. 212, §§ 36,46, 47, 53, 58, 60, 62, 74, 80; St. 1906, c.403, amending R. L. c. 212, § 53; c. 214, §§2, 6.
The vital allegations are that, being informed and believing “that criminals were escaping on said train from said Newburyport,” he went aboard for the purpose of “apprehending said criminals ” and “ examining certain persons abroad whom he had reason to suspect of an unlawful design.” “ Criminals ” is a word of broad significance, and includes those who may have committed the most trifling infractions of a penal statute, as well as those guilty of the most heinous offences. It obviously describes a large number of persons, whom a constable would have no right to arrest without a warrant. The other statement of purpose, for which the entry upon the train was made, was to perform the duty required under R. L. c. 31, § 2, relating to watch and ward. The justification, which this statute might afford, reaches only to the watch in the examination of “all persons abroad
Without passing upon this question, it is enough for the purposes of the present case to determine that one, who has become a passenger upon a steam railroad train and has placed himself in the carriage of the common carrier, cannot be said to be “ abroad.” Therefore, the constable was at most a mere licensee. The allegations of the declaration place him upon a quite different basis than was the plaintiff in Parker v. Barnard, 135 Mass. 116, where the police officer, in the execution of his duty, was injured by reason of a violation of statute on the part of the owner of the building. This case is also distinguishable from Learoyd v. Godfrey, 138 Mass. 315, where the police officer had been expressly invited upon the premises, and, in addition to the invitation, went for the purpose of suppressing a breach of the peace. The particular circumstances in Gordon v. Cummings, 152 Mass. 513, and Finnegan v. Fall River Gas Works, 159 Mass. 311, were such as to warrant the finding of an implied invitation on the part of the owner to enter the premises where the injuries were received. It is not alleged here that the defendant had failed to perform any statutory obligation incumbent upon it, which is a further fact distinguishing it from Parker v. Barnard, 135 Mass. 116. There was not even the implied invitation on the part of the defendant for the constable to enter the train, which might possibly be held to exist if a theft or other crime was being committed upon the train. Nor are the plaintiff’s rights any stronger, if indeed they are as strong, as those of a fireman entering upon property for the purpose of protecting it from destruction. Yet it has been held in other jurisdictions that under such circumstances the person entering has only the rights of a licensee. See Gibson v. Leonard, 143 Ill. 182; Beehler v. Daniels, 18 R. I. 563; Kohn v. Lovett, 44 Ga. 251;
Judgment affirmed.
