Commonwealth v. Boston & Lowell Railroad

Colt, J.

The defendant corporation sold passenger tickets at Lowell and Lawrence, for an excursion to Salem, and thence by steamer to the Isles of Shoals. The special train upon which these passengers were carried was owned by the defendant, and was managed and controlled by its agents and servants. For the convenience of the passengers, and by the directions of those in charge, the train was run on and along the pier and wharf of a coal company, upon which were railroad tracks for the private use of the company, connected by a switch with the Salem and Lowell Railroad. The agent of the steamboat had obtained verbal permission from the coal company to receive and land the passengers there, and for the train to use the tracks upon the pier down to the boat for that purpose. There was no evidence that this use of the pier by the train on this occasion was known to the superior officers of the defendant corporation, but it was admitted that the persons in charge of the train were at the time engaged in the business of the railroad company, namely, the ousiness of carrying passengers for hire, the profits of which were received by the company, although no additional recompense was had for running upon the wharf. The persons whose lives were lost by the alleged negligence of the corporation, or the gross negligence of its servants, were passing on foot over the pier, and were killed by the defendant’s train as it came down in the evening to receive the passengers leaving the steamer on its arrival at the wharf.

The defendant is indicted under the St. of 1874, c. 372, § 163, which provides a penalty in cases where “ by reason of the negligence or carelessness of a railroad corporation, or of the unfit ness or gross negligence or carelessness of its servants or agents while engaged in its business, the life of any person being a passenger is lost; or the life of any person being in the exercise of due diligence, and not being a passenger, or in the employment of such corporation, is lost; ” “ provided that the corporation shall not be so liable for the loss of life by any person, while waiting or being upon its road contrary to law.”

The first question raised by the bill of exceptions is, whether the statute applies, when the loss of life occurs upon a railroad track not owned by the defendant, or within the chartered limits of its road, nor within the chartered limits of a road then under its control, but upon a private track upon which the train is run by the mere sufferance and license of the owner. It was ruled that, upon the facts admitted, the defendant might be liable under the statute for the killing of a person under such circumstances. This ruling was right. The defendant is liable if the death is caused by the gross negligence and carelessness of its servants, while engaged in its business. If the construction contended for by the defendant is the true construction, and the words “ while engaged in its business ” are held to limit the liability to cases of negligence arising directly in the business of transporting passengers and freight upon its own road, or upon a road which it lawfully uses, still the case comes fairly within its provisions. It is apparent that the use of this track was reasonably incident to the business in which the corporation was lawfully engaged. The track was constructed for the purpose of affording access from tide-water to the railroads terminating in Salem; and it makes no difference that it was a private track, built and owned by another corporation, instead of a track built, as it well might have been, under the chartered powers of the railroad corporation. There was evidence to warrant a finding that the act of running the train on this track by the verbal license of its owner was authorized by the defendant corporation. At the time of the accident the defendant was in the actual use and occupation of it by the consent of the owner, and it must be treated, so far as this liability is concerned, as the defendant’s track. It is settled that railroad corporations may incur responsibility, and subject themselves to liabilities, as incident to their business, for acts occurring beyond the limits of their own line. Feital v. Middlesex Railroad, 109 Mass. 398. McCluer v. Manchester & Lawrence Railroad, 13 Gray, 124.

It is further insisted, that there was no evidence which would justify the jury in finding that the persons killed were in the exercise of due care and diligence at the time of the accident. The judge was requested so to rule, but ruled that the question of due diligence, and the question whether these persons were walking upon the track or were upon the pier, under a license express or implied from the owners of the wharf, as well as the nature and extent of the license, were questions for the jury, under all the circumstances of the case.

The burden is upon the Commonwealth to show that the persons killed were in the exercise of due care and diligence; but this burden is sustained by proving facts and circumstances from which it may be fairly inferred. If there is a sufficient disclosure of facts, the mere absence of fault may be sufficient. In the case ■ at bar, the circumstances were such as tended to exclude the idea of fault, and to indicate that these persons were in the exercise of ordinary care. See Crafts v. Boston, 109 Mass. 519.

It appears that three of the persons killed were passengers upon the excursion steamer, and the jury may well have inferred that the other, who was not a passenger, was properly there, by implied license, to take care of and conduct his father and mother home. There was evidence tending to show, that they all proceeded together up the pier, with reasonable despatch, and with nothing appearing unusual or disorderly in their conduct; it was the only way to reach the street; the night was dark, and progress was impeded by crowds of other people passing along the passageway in which the tracks were laid, or standing on the pier waiting to take passage in the train. Of the twenty-five hundred passengers on the steamer, two thousand from Salem passed over these tracks from the wharf to' the street, on their way home. For a distance of thirteen hundred feet, where the pier was built on piles, the width of the passageway, inside of the timbers placed on each side, was about twenty-three feet. Within this space two tracks were laid. The track on the east side was planked up even with the rails, to accommodate ordinary travel to and from the wharf, while the rails of the other track were laid on the surface of the planking. It was upon the east track that the accident happened. There was evidence that the train was running with great speed; that those who knew it was coming, and were watching for it, were unable to see it, until it had approached within fifteen feet. Many of the more active and less timid of those who saw it escaped the danger by throwing themselves over and hanging on by the side of the pier, or by springing to a perilous position, upon a box covering a water-pipe, that was constructed by its side. In all this there was some evidence that parties passing over that part of the passageway, which was apparently constructed for the use of those passing on foot to and from the wharf, and who were thus exposed to a sudden danger, from which escape was difficult, and who were there crushed between the train and the side of the pier, were in the exercise of ordinary care and diligence.

Those who, by express or implied license, were rightfully on the pier, were in a position similar to that of persons who, in a crowded station, pass along a way prepared for their use, and who have a right to rely on the usual and additional precautions which are taken by railroads to protect such persons from injury from an approaching train. A very different state of facts is thus presented from that upon which the case of Hinckley v. Cape Cod Railroad, 120 Mass. 257, was decided.

Exceptions overruled.