185 Mass. 510 | Mass. | 1904
This is an action brought in 1898, under St. 1886, c. 140, to recover a penalty for wrongfully causing the death of Joseph P. Pope, the plaintiff’s intestate.
The jury were warranted in finding that Pope took a car of the defendant at Scollay Square, Boston, for Lynn about eight o’clock in the evening of a day in September. He paid his first fare and then fell into a stupor. When the car reached Revere, a second fare came due. The conductor tried to rouse him to collect the fare, without success, and after collecting the other fares, in the language of one of the plaintiff’s witnesses, “he came back to him and shook him and kicked him and couldn’t wake him up.” Thereupon the conductor and motorman put him off, “ one took him by his head and the other the feet ” and laid him down beside the tracks on the Lynn marshes. He was run over and killed by the same car on its return trip to Boston. Pope was a soldier in the regular army quartered at Fort War
The declaration contained six counts. Verdicts were directed for the defendant on the first three counts. The fifth count was a count for assault and battery; a verdict for the plaintiff in the sum of SI was returned on this count. With this the defendant is content. The fourth and sixth counts are stated to be counts under Pub. Sts. c. 112, § 212, but that act, so far as a civil remedy is given, applies to steam railroads only, and the corresponding act, St. 1886, c. 140, is doubtless intended. In the fourth count the plaintiff alleges that his “ intestate was then and there a person in the exercise of due diligence and not a passenger,” and in the sixth count that he was a passenger.
It is plain that the intestate ceased to be entitled to the rights of a passenger on failing to pay the second fare when due. That ends the plaintiff’s right to recover on the sixth count.
It also is plain that there was no evidence of negligence in the operation of the car on its return trip when the plaintiff’s intestate was run over and killed; and the plaintiff, to recover, must show the defendant’s negligence in putting the intestate off as he was put off, relying on the action of the car on its return trip as an instrument of injury which was the natural and probable result of his being put off. As to the case so made on the fourth count, the defendant asked the judge to direct a verdict for it; this was refused, and the case is here on a report as to the correctness of that among other rulings.
A majority of the court are of opinion that this ruling should have been given.
At common law, the death of a human being is not the subject of an action for damages. This was established in this Commonwealth by the case of Carey v. Berkshire Railroad, 1 Cush. 475.
In that case, which was decided in the year 1848, the difference is pointed out between the way in which the common law has been changed and the wrongful death of a person has been
Indeed the statute as to carriers (St. 1840, c. 80), referred to in Carey v. Berkshire Railroad, was not the first act of the kind. The first act of this kind was a highway act passed a little over fifty years before the carrier act of 1840, c. 80. It provided that if the life of a traveller was lost through a defect in a public way the county, town or persons whose duty it was to keep it in re
The system of imposing a punishment for wrongfully causing death in place of giving to the family of the deceased an action for compensation has been adhered to and extended since the decision in Carey v. Berkshire Railroad, when it applied only to travellers on defective highways and to passengers of common carriers. In 1853 it was extended to cases where a steam railroad had wrongfully caused the death of “ any person, not being a passenger or employee . . . such person being in the exercise of due care and diligence.” St. 1853, c. 414, now R. L. c. Ill, § 267. In 1864 the statute as to steam railroads was extended to street railways, St. 1864, c. 229, § 37, now R. L. c. Ill, § 267, in 1871, to collisions at grade crossings where the statutory signals were not given, St. 1871, c. 352, now R. L. c. Ill, § 268, and in 1883, employees of steam railroads were put on the same footing, in case they were killed by a steam railroad, as persons who were not passengers. St. 1883, c. 243, now R. L. c. Ill, § 267. Employees of street railways had been put on that footing by St. 1864, c. 229, § 37, and in 1897 all persons and corporations were put on the same basis as steam railroads and street railways. St. 1897, c. 416, now R. L. c. 171, § 2. It will be plain, from what is said hereafter, that the employer’s liability act, in what is now R. L. c. 106, §, 73, which was taken from the English act following Lord Campbell’s act, is so far modified by § 74, in spite of what is now § 72, as to be a part of this system.
In Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211, it was decided that where a steam railroad wrongfully causes the death of a passenger the case is within the act and the railroad company is to be punished, although the passenger is not in the exercise of due care and could not have recovered had he been injured only and not killed. This conclusion was reached
It also is pointed out in the opinion in Commonwealth v. Boston & Lowell Railroad, that the case of a death at a grade crossing (originally brought within the system by St. 1871, c. 352) is another instance where the liability of the railroad to be punished is not coterminous with the right which the deceased would have had to damages had he been injured only and not killed. In case of a death at a grade crossing the railroad is punished “ unless it is shown that, in addition to a mere want of ordinary care, the person injured . . . was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury.”
By St. 1881, c. 199, (that is to say, after the system had been in operation and applicable to the death of a traveller on a defective highway for nearly ninety years and bad been made applicable to many other cases since 1840, when it was extended to carriers,) a civil remedy was given in addition to the remedy by indictment, in all cases except where death was caused by a street railway, namely, in case of steam railroads (§ 1), grade crossing accidents (§ 2), carriers (§ 3), and defects in highways (§ 4). And by St. 1886, c. 140, (under which the action now before us was brought,) the omission of street railways from the act of 1881 was remedied. Before St. 1886, c. 140, the only remedy in case of street railways was by indictment. Holland v. Lynn & Boston Railroad, 144 Mass. 425.
Two years after it was established in Commonwealth v. Boston & Lowell Railroad that an indictment could be maintained for
Before and since the decision in Merrill v. Eastern Railroad, it has been stated by the court that the effect of these two statutes (St. 1881, c. 199, and St. 1886, c. 140) is to give a civil remedy for the recovery of this penalty (which is imposed by way of punishment) in addition to the remedy by indictment. In Kelley v. Boston & Maine Railroad, 135 Mass. 448, 449, C. Allen, J., speaking for the court, said: “ But no criminal jurisdiction existing under the earlier statute (St. 1874, c. 372, § 163) is taken away by the St. of 1881, c. 199; and the purpose of the later statute was to give a new remedy to the party by a civil action, in addition to that already existing by indictment.” In Littlejohn v. Fitchburg Railroad, 148 Mass. 478, 482, Holmes, J., speaking for the court, said: “ But the present action is statutory and penal in its character. The statute does not extend the liability for personal injuries to those injuries which cause death, as in Little v. Dusenberry, 17 Vroom, 614 (where also, so far as appears, the defendant may have been negligent). It creates a liability of a different nature. The action which it gives to the administrator is merely a substitute for the indictment also provided for, and it is expressly enacted that the damages shall be 6 assessed with reference to the degree of culpability of the corporation, or of its servants or agents.’ ” In Doyle v. Fitchburg Railroad, 162 Mass. 66, 71, Morton, J., in delivering the opinion of the court, said: “ Originally the remedy was by indictment. Afterwards it was extended to an action of tort. St. 1871, c. 381, § 49. St. 1874, c. 372, § 163. St. 1881, c. 199, §§ 1, 6. But only one of the remedies can be pursued by the executor or administrator. And whether the
The conclusion which has been reached as to the character of these two acts (St. 1881, c. 199, and St. 1886, c. 140) could not have been avoided. It had to be held that these acts gave a civil remedy for the recovery of a penalty imposed by way of punishment.
Where a plaintiff’s rights are invaded by the wrongful act of a defendant, the question and the only question is how great was the injury done to the plaintiff. But where a defendant is to be punished for a wrongful act done by him, the question and the only question is how serious was the defendant’s wrong doing, and the amount of injury inflicted upon the deceased (except so far as it gives character to the wrong doing of the defendant) is altogether immaterial.
At common law damages are given for the full amount of the injury done to the plaintiff where he has an action for a violation of his rights. And where the amount recoverable in such an action is limited by statute (as it is in this Commonwealth where a person is injured but not killed from a defect in a public way, B. L. c. 51, § 18, or where an action is given by the employer’s liability act, St. 1887, c. 270, § 3, now B. L. c. 106, § 74, for an injury short of death) the question for the jury is, What damages will compensate the plaintiff for the injury done him, not exceeding the limited amount which by statute can be imposed ?
Where a penalty is imposed by way of punishment in a crim
But when it was provided by statute that an action of tort could be maintained where death was caused through the wrongful act of the defendant, it thereby became the province of the jury to fix the amount of the penalty to be imposed, and it became necessary to specify how the amount of it should be assessed. It was provided that the amount to be recovered in the action of tort was “ to be assessed with reference to the degree of culpability of said corporation or of its servants or agents.” That fixed the character of the action of tort under these two acts. St. 1881, c. 199, and St. 1886, c. 140. By that provision the effect of these two acts was to give a civil remedy for the recovery of a penalty imposed by way of punishment.
It is not uncommon for an informer to be allowed by statute to maintain a civil action for the recovery of a penalty imposed as a punishment. An action under St. 1881, c. 199, or St. 1886, c. 140, is an action of the same kind, the only difference being that the penalty in these actions goes not to an informer but to the family of the deceased.
The character of these acts imposing a penalty for wrongfully causing death does not seem to have been present in the mind of the court when it was assumed in McCreary v. Boston & Maine Railroad, 153 Mass. 300, that the corporation was liable under the statute where an employee who is on its tracks contrary to law is killed through the wanton and reckless acts of a steam railroad corporation, because under those circumstances he could
Inasmuch as “ no distinction can be made between an indictment and an action of tort,” so far as the liability of the defendant is concerned, the question in the case at bar is this: If the defendant railroad had been indicted for causing the death of Joseph P. Pope, would the evidence introduced at this trial have warranted a finding that the government had proved the averment (which it must have made in the indictment) that Pope, when put off the car, was “ in the exercise of due care and diligence ” ?
By the testimony of the plaintiff’s witnesses, Pope was then in such a stupor that he could not be waked either by shaking or kicking. We are of opinion that a person in such a condition could not have been found to have been “ a person . . . in the exercise of due care and diligence,” had an indictment been resorted to, and therefore cannot be found to have been “ in the exercise of due diligence,” as he was alleged to have been in the fourth count of the declaration in this action of tort. We use the words “due diligence” in place of the words “due care ” found in the Revised Laws, (R. L. c.,111, § 267,) merely because those are the words of the count now in question (the fourth count) and of St. 1886, c. 140, under which this action was brought, and not because there is any distinction between those words and the words of R. L. c. Ill, § 267.
Since the Massachusetts acts are exactly what Lord Campbell’s act is not, it is of no consequence that in States where Lord Campbell’s act has been enacted a recovery can be had under circumstances like those now in question. We refer to Louisville & Nashville Railroad v. Johnson, 108 Ala. 62; Guy v. New York, Ontario & Western Railroad, 30 Hun, 399; Gill v. Rochester & Pittsburgh Railroad, 37 Hun, 107; Louisville & Nashville Railroad v. Ellis, 97 Ky. 330; Weymire v. Wolfe, 52 Iowa, 533; Southern Railway v. Webb, 116 Ga. 152; Haug
Neither are the eases of any assistance in which it has been held that a plaintiff could have recovered who had been injured without being killed, under circumstances like those now before lis. See Evans v. St. Louis, Iron Mountain & Southern Railway, 11 Mo. App. 463; Kline v. Central Pacific Railroad, 37 Cal. 400; Conolly v. Crescent City Railroad, 41 La. Ann. 57. The Legislature deliberately did not adopt as the test whether the railroad is to be punished the liability which the defendant would have been under to make compensation had the deceased been injured only and not killed. Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211. Merrill v. Eastern Railroad, 139 Mass. 252.
It is to be noted that no one of these cases goes further than to hold that in such a case the plaintiff can recover. None of them takes, the further step that when he does recover in such a case, he recovers on the ground that he was in the exercise of due care, and not on the ground that he is excused from alleging and proving due care by the fact that when insensible he was exposed to the danger in question by the wrongful act of the defendant. It is also to be noted that Aiken v. Holyoke Street Railway, 184 Mass. 269, is a case of direct injury through wanton and reckless acts. Aiken v. Holyoke Street Railway is an authority that in such a case a plaintiff need not allege or prove that he was in the exercise of due care. There is no case in which it is held that where wanton and reckless acts indirectly cause damage to the plaintiff the rule of Aiken v. Holyoke Street Railway applies.
The words which we have to construe are words originally used in a statute imposing a punishment to be inflicted only on an indictment being found, and are now to receive the same construction as if contained in an indictment. In addition to that, in construing these words it is settled that the
If it be a fact that a person in such a stupor as Pope was in can be said to be by legal intendment negatively and constructively in the exercise of due care, within the meaning of those words when used in a declaration to recover compensation for an injury done to the plaintiff, which we do not concede, we are of opinion that he cannot be held to be in the “ exercise of due diligence ” within the meaning of those words in St. 1886, c. 140.
It is settled that these words in that statute mean what they have meant and still mean in an indictment under St. 1853, c. 414, § 1, now R. L. c. Ill, § 267; and that they are not to be construed as invoking for the test of the defendant’s liability under the statute its liability at common law in case of an action for compensation for an injury short of death. Construing these words in the light of what we have shown to be settled by decision, they cannot be held to mean what for the purposes of this discussion we assume without deciding that similar words mean by legal intendment in an action for compensation, but must be taken to have here their ordinary acceptation, and to mean that the person killed, if not a passenger or employee, must have been actively and actually in the exercise of due diligence.
In the opinion of a majority of the court the entry must be, in accordance with the terms of the report,
Judgment for the defendant on the fourth and sixth counts.