Conary v. Boston & Maine Railroad

Carroll, J. The plaintiff is the administratrix of the estate of Arthur L. Conary. The action is in tort to recover damages for his conscious suffering and death resulting from an accident which occurred November 15, 1920, in the town of Reading, where Lowell Street crosses the defendant’s tracks by an overhead bridge. The intestate was operating a Ford automobile. As he was travelling on the incline leading to the bridge, one of the front wheels went into a depression in the surface of the way. The automobile turned and went through a wooden fence on to the railroad location. The intestate was injured and died November 18, 1920. The plaintiff recovered a verdict of $500 on the count for conscious suffering, and $5,000 on the death count. The defendant requested the trial judge to rule that, if it were hable, damages for the death were to be assessed under G. L. c. 229, § 1. This was refused. The plaintiff contended that damages were to be assessed under G. L. c. 229, § 3. Section 1, so far as material, provides that, if the life of a person is lost by reason of a defect or want of repair in or upon a way or bridge, the “person by law obliged to repair the same shall ... .be liable in damages not exceeding one thousand dollars.” Under § 3, so far as material to this case, it is provided, “If a corporation operating a railroad ... by reason of its negligence . . . while engaged in its business, causes the death of a . . . person in the exercise of due care who is not a passenger . . . , 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 culpability of the corporation or of its servants or agents, which shall be recovered in an action of tort. . . .” The defendant was the “person by law obliged to repair” the way. The procedure under the statute to recover against a railroad corporation, if it were obliged to keep the way in [402] repair, would be the same as the procedure against a municipality obliged by law to keep the highway in repair. Notice to the defendant, as required by the statute, would be a condition precedent to recovery. Dickie v. Boston & Albany Railroad, 131 Mass. 516. Mack v. Boston & Albany Railroad, 164 Mass. 393. If the way were required to be kept in repair by the town, damages would be assessed under § 1, and we know of no reason why the same rule should not be applied where the defendant was charged with the duty of repair. The injury resulted from the defendant’s neglect of its statutory duty to keep the way in a reasonably safe condition for travel. It did not result from the negligence of the defendant in the operation of its business as a carrier of passengers and goods. In Charles v. Boston Elevated Railway, 230 Mass. 536, the death of the passenger resulted from the negligence of the defendant in transporting its passengers. See also Commonwealth v. Boston & Lowell Railroad, 126 Mass. 61; Daley v. Boston & Albany Railroad, 147 Mass. 101, 112, 113; Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8. We find nothing in Parker v. Boston & Maine Railroad, 3 Cush. 107, and White v. Quincy, 97 Mass. 430, to the contrary. The request of the defendant that damages must be assessed under the highway statute should have been given. During the progress of the trial, the plaintiff was permitted to introduce in evidence, against the defendant’s exception, a petition of the selectmen of the town of Reading to the county commissioners for a decree “prescribing what repairs shall be made by the corporation at the crossing, the time within which they shall be made, together with such other orders as public convenience and necessity may require,” and a decree of the county commissioners made on January 1, 1916, upon that petition. The defendant “objected to the admission of the record” of the proceedings and to each and every part thereof stating that the recital of the history and any part of it other than the order directing the defendant what to do was immaterial, and further that the order itself was immaterial on the ground that the width of the bridge did not enter into the cause of the accident.” As [403] there must be a new trial of this case, we consider this exception. The decree contains, beside an order to the defendant to reconstruct and widen the bridge, neglect to perform which, the plaintiff contended, resulted in the injury and death of the plaintiff’s intestate, long preliminary statements reciting the history of the way and of other proceedings relating to it beginning in 1845. These prehminary statements should not have been read to the jury. They did not relate to the defendant’s breach of duty in 1920 and did not bear on the question of the defendant’s culpability for the injury to the plaintiff’s intestate. The plaintiff also introduced certain evidence concerning the original layout of the highway. ' This evidence might properly have been excluded. The defendant’s liability rested on its neglect to comply with the decree of the county commissioners made in 1916. Conditions prior to that time were not material and had no tendency to establish the defendant’s neglect to comply with the duty imposed upon it by the more recent decree of the commissioners. The defendant offered certain evidence as to the construction of a Ford automobile, which was excluded. The defendant fully interrogated the witness concerning the condition of the automobile on the day of the accident. There was nothing indicating any defect in it. This evidence was properly excluded. The defendant offered to show that in 1916 it had brought a petition of certiorari to test the validity of the order of the county commissioners, which was pending until decided by the full court in 1921; that a receivership was decreed for the Boston and Maine Railroad in August, 1916, and ended in November, 1919; and that Federal control of the railroad began in 1918 and ended in February, 1920. The damages under this statute were to be assessed with reference to the defendant’s degree of culpability. The facts contained in the offer might affect the question of the defendant’s culpability. They might properly have been considered by the jury on this question and such weight given them as the jury thought appropriate. To recover under the highway statute, the defect must be [404] the sole cause of the injury. Feeley v. Melrose, 205 Mass. 329, 333. Igo v. Cambridge, 208 Mass. 571, 575. The requests of the defendant to this effect might well have been given; but we do not think the defendant was harmed by the refusal, for the reason that all the evidence tended to show that the automobile was not defective. We have considered all the exceptions argued by the defendant. For the reasons stated, the order must be Exceptions sustained.