Creeden v. Boston & Maine Railroad , 193 Mass. 280 ( 1906 )

Rugg, J.

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 whom they have reason to suspect of an unlawful design.” It has been strongly argued, in behalf of the defendant, that, in view of the history of this statute, it should be construed to apply only to those persons who are walking abroad. See statute passed October 19, 1652; 3 Mass. Col. Rec. 282; Prov. St. 1699-1700, c. 10; 1 Prov. Laws (State ed.) 381; St. 1796, c. 82; Rev. Sts. c. 17, § 4; Prov. St. 1712-13, c. 4; 1 Prov. Laws (State ed.) 699; Commissioners’ Report, c. 23, § 4; Pratt v. Street Commissioners, 139 Mass. 559, 563.

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; Woods v. Miller, 30 App. Div. (N. Y.) 232; Woodruff v. Bowen, 136 Ind. 431. The case made out by the declaration is somewhat like Berry v. Boston Elevated Railway, 188 Mass. 536, where the defendant was exonerated, the plaintiff having only the rights of a licensee. The defendant owed him no duty- to keep its premises in a safe condition, and in such a case could not be held liable ordinarily, unless there was some recklessness or wanton misconduct on the part of itself or its servants. As was said by Mr. Justice Barker, in Redigan v. Boston & Maine Railroad, 155 Mass. 44, at page 47, “ The general rule is, that a bare licensee has no cause of action on account of dangers existing in the place he is permitted to enter, but goes there at his own risk, and must take the premises as he finds them. . . . lío duty is cast upon the owner to take care of the licensee, or to see that he does not go to a dangerous place, but he must take his permission with its concomitant conditions and perils, and cannot recover for injuries caused by obstructions or pitfalls.” See Cowan v. Kirby, 180 Mass. 504; Byrnes v. Boston & Maine Railroad, 181 Mass. 322; Griswold v. Boston & Maine Railroad, 183 Mass. 434.

Judgment affirmed.