147 Mass. 35 | Mass. | 1888
Whatever implied license the defendant may have had to enter the plaintiff’s close had been revoked by the regulations made by the plaintiff for the management of its business and the use of its property in its business. The defendant entered under a claim of- right, and can justify his entry only by showing a right superior to that of the plaintiff. The plaintiff has all the rights of an owner in possession, except such as are inconsistent with the public use for which it holds its franchise; that is, with its duties as a common carrier of persons and merchandise. As concerns the case at bar, the plaintiff is obliged to be a common carrier of passengers. It is its duty to furnish reasonable facilities and accommodations for the use of all persons who seek for transportation over its road. It provided its depot for the use of persons who were transported on its cars to or from the station, and holds it for that use, and it has no right to exclude from it persons seeking access to it for the use for which it was intended and is maintained. It can subject the use to rules and regulations, but by statute, if not by common law, the regulations must be such as to secure reasonable and equal use of the premises to all having such right to use them. See Pub. Sts. c. 112, § 188. Fitchburg Railroad v. Gage, 12 Gray, 393. Spofford v. Boston & Maine Railroad, 128 Mass. 326. The station was a passenger station. Passengers
The defendant was allowed to use the depot for any business that he had with the plaintiff. But he had no business to transact with the plaintiff. He had no merchandise or baggage to deliver to the plaintiff, or to receive from it. His purpose was to use the depot as a place for soliciting contracts with incoming passengers for the transportation of their baggage. The railroad company may be under obligation to the passenger to see that he has reasonable facilities for procuring transportation for himself and his baggage from the station where his transit ends. What conveniences shall be furnished to passengei's within the station for that purpose, is a matter wholly between them and the company. The defendant is a stranger both to the plaintiff and to its passengers, and can claim no rights against the plaintiff to the use of its station, either in his own right- or in the right of passengers. The fact that he is willing to assume relations with any passenger which will give him relations with the plaintiff involving the right to use the depot, does not establish such relations or such right; and the right of passengers to be solicited by drivers of hacks and job wagons is not such as to give to all such drivers a right to occupy the platforms and depots of railroads. If such right exists, it exists, under the statute, equally for all, and railroad companies are obliged to admit to their depots, not only persons having business there to deliver or receive passengers or merchandise, but all persons seeking such business, and to furnish reasonable and equal facilities and conveniences for all such.
The only case we have seen which seems to lend any countenance to the position that a railroad company has no right to exclude persons from occupying its depots for the purpose of soliciting the patronage of passengers, is Markham v. Brown, 8
It is argued that the statute gave to the defendant the same right to enter upon and use the buildings and platforms of the plaintiff, which the plaintiff gave to Porter and Sons. The plaintiff made a contract with Porter and Sons to do all the service required by incoming passengers in receiving from the plaintiff and delivering in the town baggage and merchandise brought by them, and prohibited the defendant and all other owners of job wagons from entering the station for the purpose of soliciting from passengers the carriage of their baggage and merchandise, but allowed them to enter for the purpose of delivering baggage or merchandise, or of receiving any for which they had orders. Section 188 of the Pub. Sts. c. 112, is in these words: “ Every railroad corporation shall give to all persons or companies reasonable and equal terms, facilities, and accommodations for the transportation of themselves, their agents and servants, and of any merchandise and other property upon its railroad, and for the use of its depot and other buildings and grounds; and, at any point where its railroad connects with another railroad, reasonable and equal terms and facilities of interchange.” A penalty is prescribed in § 191 for violations of the statute.
The statute, in providing that a railroad corporation shall give to all persons equal facilities for the use of its depots, obviously means a use of right. It does not intend to prescribe who shall have the use of the depot, but to provide that all who have the right to use it shall be furnished by the railroad
The English railway and canal traffic act, 17 & 18 Yict. c. 31, requires every railway and canal company tp afford all reasonable facilities for traffic, and provides that “ no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever.” Marriott v. London & South Western Railway, 1 C. B. (N. S.) 499, was under this statute. The complaint was that the omnibus of Marriott in which he brought passengers to the railroad was excluded by the railway company from its station grounds, when other omnibuses which brought passengers were admitted. An injunction was ordered. Beadell v. Eastern Counties Railway, 2 C. B. (N. S.) 509, was a complaint under the statute, that the railway company refused to allow the complainant to ply for passengers at its station, it having granted the exclusive right of taking up passengers within the station to one Clark. The respondent allowed the complainant’s cabs to enter the station for the purpose of putting down passengers, and then required him to leave the yard. An injunction was refused. One ground on which the case was distinguished from Marriott’s was, that the complainant was allowed to enter the yard to set down passengers, and was only prohibited from remaining to ply for passengers. See also Painter v. London, Brighton, & South Coast
We have not been referred to any decision or dictum in England or in this country, that a common carrier of passengers and their baggage to and from a railroad station has any right, without the consent of the railroad company, to use the grounds, buildings, and platforms of the station for the purpose of soliciting the patronage of passengers, or that a regulation of the company which allows such use by particular persons, and denies it to others, violates any right of the latter. Cases at common law or under statutes to determine whether railroad companies in particular instances gave equal terms and facilities to different parties to whom they furnished transportation, and with whom they dealt as common carriers, have no bearing on the case at bar. The defendant in his business of solicitor of the patronage of passengers held no relations with the plaintiff as a common carrier, and had no right to use its station grounds and buildings. A majority of the court are of the opinion that there should be
Judgment on the verdict.
The Chief Justice, Mr. Justice Devens, and myself think that our statutes should receive a different construction from that given to them by a majority of the court. The Pub. Sts. c. 112, § 188, provide that “ every railroad corporation shall give to all persons or companies reasonable and equal terms, facilities, and accommodations for the transportation of themselves, their agents and servants, and of any merchandise and other property upon its railroad, and for the use of its depot and other buildings and grounds; and, at any point where its railroad connects with another railroad, reasonable and equal terms and facilities of interchange.” Section 189 of the same chapter provides that “ every railroad corporation shall promptly forward merchandise consigned or directed to be sent over another road connecting with its road, according to the directions contained thereon or accompanying the same, and shall not receive and forward over its road merchandise consigned, ordered, or expressly directed to be received and forwarded by a .different route.” By § 191, a railroad corporation which violates these provisions is liable for all damages sustained by reason of such violation, and to a penalty of two hundred dollars, which may be recovered to the use of the party aggrieved, or to the use of the Commonwealth. These sections are taken from the St. of 1874, c. 372, §§ 138,139, 141, and the St. of 1880, e. 258.
Section 188 of the Pub. Sts. c. 112, was first enacted by the
As the last clause of the section makes provision for carriers connecting by railroad, we think that the preceding clause was intended to make provision for other connecting carriers, and to include public or common carriers, as well as private carriers actually employed by passengers or by the owners or consignees of merchandise. Stages and expresses are the only common carriers of passengers and of merchandise to and from many places in the Commonwealth, and in connection with railroads often form a continuous line of transportation. The statute, we think, was intended to prevent unjust discrimination by a railroad corporation between common carriers connecting with it in any manner, and to require that the railroad corporation should furnish to such carriers reasonable and equal terms, facilities, and accommodations in the use of its depot and other buildings and grounds for the interchange of traffic.
■ A railroad corporation can make reasonable rules and regulations concerning the use of its depot and other buildings and grounds, and can exclude all persons therefrom who have no business with the railroad, and it can probably prohibit all
Marriott v. London & South Western Railway, 1 C. B. (N. S.) 499, was an application for an injunction under the St. of 17 & 18 Viet. c. 31, § 2, and an injunction was issued compelling the company to admit the complainant’s omnibuses into its yard “ at all reasonable times, for the purpose of forwarding, receiving, and delivering traffic upon and from their said railway, and in the same manner and to the same extent as other public vehicles of a similar description are admitted into the said yard for that purpose.” In that case the company had made arrangements with one Williams, to provide sufficient accommodations by means of omnibuses for passengers .over a part of the route on which the complainant’s omnibuses ran, but it appeared that there were passengers from Twickenham and Hampton Wick whose sole reliance was upon the complainant’s omnibuses. Williams’s omnibuses were admitted within the yard to set down and to receive passengers, but the complainant’s omnibuses were not permitted to enter the yard for either purpose. The court held, that, as it did not appear that there was any public benefit which justified the course pursued by the company, the arrange
Beadell v. Eastern Counties Railway, 2 C. B. (N. S.) 509, and Painter v. London, Brighton, & South Coast Railway, 2 C. B. (N. S.) 702, were both applications under the same statute. In one of these cases the railway company had agreed with a cab proprietor, in consideration of ¿6600, to allow him the exclusive liberty of plying for hire within its station; and in the other, similar exclusive privileges had been granted to a limited number of cab proprietors. The application of a cab proprietor to be admitted on equal terms was refused in each case, on the ground that it was not shown that the arrangement made by the companies was not beneficial to the public, and it was said that “ the statute in question was passed for the benefit of the public, and not for that of individuals.”
The later English cases we have cited seem to show that, under the English statute, the public convenience or inconvenience is not exclusively the test, but is only one element to be taken into account in considering what is an undue and unreasonable preference, and that a common carrier may be regarded as representing all those persons who choose to employ him. While the English statute provides against undue and unreasonable preferences and advantages, it does not, in terms, provide that all persons and companies shall have equal facilities and accommodations for the use of the depot and other buildings and grounds of a railroad corporation. The statute relating to expressmen, construed in New England Express Co. v. Maine Central Railroad, ubi supra, is in this respect similar in terms to the Pub. Sts. c. 112, § 188.
It is, undoubtedly, a convenience to passengers on a railroad, that common carriers of passengers or of baggage and other merchandise should be in waiting on the arrival of trains at a station, although no order requiring the attendance of such carriers has been previously given. While the statute requiring a railroad corporation to give to all persons and companies reasonable and equal terms, facilities, and accommodations for the use of its depot and other buildings and grounds, must, from the nature of the subject, be so construed as to permit the corporation to make
In Hole v. Digby, 27 W. R. 884, it was held that, if a railway company licensed one person to ply with carriages within its station yard, a person not so licensed commits a trespass in entering the yard, against the prohibition of the company, although the license given was an undue preference within the meaning of the St. 17 & 18 Vict. c. 31, § 2. See Barker v. Midland Railway, 18 C. B. 46. That statute, in § 3, authorized an application to the Court of Common Pleas, or to a judge of that court, by any person complaining of a violation of the act, and authorized the court, or judge, to issue a writ of injunction, restraining the company from continuing to violate the act, and in case of disobedience by the company authorized the court, or judge, to issue a writ of attachment, and to direct the payment of a sum of money, not exceeding ¿£200, for every day during which, after a day to be named, the company failed to obey the injunction; and by § 6 it was provided that “ no proceeding shall be taken for any violation or contravention of the above enactments, except in the manner herein provided,” saving, however, all rights under existing laws. By the St. of 36 & 37 Viet, c. 48, § 6, the jurisdiction given to the Court of Common Pleas was transferred to railway commissioners. The ground of the
The remedies provided by our statutes (Pub. Sts. c. 112, § 191) are an action for damages, and also an action of tort for a penalty, which may be recovered by the party aggrieved to his own use. If, then, the railroad company, upon the facts appearing in the report, had no right absolutely to exclude the defendant, as a common carrier, from entering its depot and grounds to solicit employment from passengers, while it permitted Porter and Sons to enter for this purpose, and if it would be liable to the defendant in an action, for excluding him, the defendant could not be guilty of a tort in entering for this purpose in a reasonable manner and at reasonable times.
A similar decision was made the same day, in Suffolk, in the case of
Commonwealth vs. John Carey.
Complaint under the Pub. Sts. c. 112, § 196, to the Municipal Court of the city of Boston, alleging that the defendant did, on December 8, 1887, without right, loiter and remain within the passenger station-house of the New York and New England Railroad Company in Boston. At the trial in the Superior Court, on appeal, before Sherman, J., it appeared in evidence that the defendant was a licensed hackman in the city of Boston; that on the day alleged he visited the premises in question about nine o’clock in the evening; that he drove into the enclosure owned by the company, permitted his hack to remain near the platform within the enclosure, and remained himself upon the platform and inside the station-house; that a railroad police officer in the station-house, who had been instructed not to permit any
The judge instructed the jury that the defendant, upon the above facts, was upon the premises of the company without right, after he received the request to leave; and that if he remained and loitered thereafter, they would be authorized to return a verdict of guilty; and the defendant alleged exceptions.
The case was submitted on briefs, on April 6, 1888, to all the judges.
J. P. Leahy, for the defendant.
A. J. Waterman, Attorney General, for the ’Commonwealth.
W. Allen, J. The only exception taken was to the instruction that the defendant had no right to remain on the premises of the railroad company after being requested to leave. The recent case of Old Colony Railroad v. Tripp, supra, is decisive of the question. Exceptions overruled.
