Wild v. Boston & Maine Railroad

Massachusetts Supreme Judicial Court

Wild v. Boston & Maine Railroad

50 N.E. 533, 171 Mass. 245, 1898 Mass. LEXIS 58

CourtMassachusetts Supreme Judicial Court

DecidedMay 20, 1898

StatusPublished

Cited by17 cases

This text of 50 N.E. 533 (Wild v. Boston & Maine Railroad) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wild v. Boston & Maine Railroad, 50 N.E. 533, 171 Mass. 245, 1898 Mass. LEXIS 58 (Mass. 1898).

Pincite

Opinion

Morton, J.

We think that there was evidence which warranted a finding by the jury that the fire was communicated by the locomotive. There was testimony tending to show that it was discovered only a short time after the locomotive had passed, and when first seen was in the hay which was under or nearly under the broken window that was in the side of the building next to the track. There was also testimony tending to show that when the locomotive passed the building it was “ throwing smoke and sparks,” and that on the day of the fire there had been no fire in the office stove and for a day or more none in the engine-room, which were the only places in the building where there ordinarily would be fire. Whether the direction of the [248]*248wind and the state of the weather were such that the fire could have caught from a spark from the locomotive, or whether, in view of the history and construction of the locomotive, a spark' could have escaped from it, or would have been likely to have escaped from it, were questions of fact for the jury.

It is possible that the law is stated too strongly in regard to the doctrine of contributory negligence in Wall v. Platt, 169 Mass. 398, 405. But, however that may be, we think that it cannot be held, as matter of law, that one who suffers a window to remain broken for two or three days, as there was testimony tending to show was the case here, in the side of a building in which hay is stored next and near to a railroad track, is guilty of such contributory negligence in case a spark from a locomotive enters the broken window and sets the building on fire as to prevent him from recovering. The strongest that it can be put for the defendant is that the question is one for the jury to determine.

The fire occurred on January 18, 1891. The writ is dated August 12, 1896. The rights and liabilities of the parties are to be determined as of the date of the fire, unless something has occurred in the mean time to change them. The defendant contends that the St. 1895, c. 293, has modified the rule of damages so that the plaintiff, if entitled to recover at all, is entitled to recover only the fair value of the property less the amount received by her for insurance thereon. The general rule is, that statutes operate prospectively, and not retrospectively, “ unless it is otherwise distinctly expressed in them, or clearly implied from the necessity of thus giving effect to their provisions.” Shallow v. Salem, 136 Mass. 136. There is nothing in the statute referred to which in express terms renders it retroactive, and we discover nothing in it which renders it necessary to so construe it in order to give effect to its provisions, or which takes it out of the operation of the general rule.

■ The request for a ruling that, on the plaintiff’s evidence, she was not entitled to recover, was rightly refused. The state of the evidence would not have justified such a ruling. Moreover, the defendant did not rest at the conclusion of the plaintiff’s evidence, and therefore was not entitled to an exception to the refusal of the court to give the ruling asked for. Goss v. Calkins, 162 Mass. 492.

Exceptions overruled.

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Morton, J.

We think that there was evidence which warranted a finding by the jury that the fire was communicated by the locomotive. There was testimony tending to show that it was discovered only a short time after the locomotive had passed, and when first seen was in the hay which was under or nearly under the broken window that was in the side of the building next to the track. There was also testimony tending to show that when the locomotive passed the building it was “ throwing smoke and sparks,” and that on the day of the fire there had been no fire in the office stove and for a day or more none in the engine-room, which were the only places in the building where there ordinarily would be fire. Whether the direction of the [248]*248wind and the state of the weather were such that the fire could have caught from a spark from the locomotive, or whether, in view of the history and construction of the locomotive, a spark' could have escaped from it, or would have been likely to have escaped from it, were questions of fact for the jury.

It is possible that the law is stated too strongly in regard to the doctrine of contributory negligence in Wall v. Platt, 169 Mass. 398, 405. But, however that may be, we think that it cannot be held, as matter of law, that one who suffers a window to remain broken for two or three days, as there was testimony tending to show was the case here, in the side of a building in which hay is stored next and near to a railroad track, is guilty of such contributory negligence in case a spark from a locomotive enters the broken window and sets the building on fire as to prevent him from recovering. The strongest that it can be put for the defendant is that the question is one for the jury to determine.

The fire occurred on January 18, 1891. The writ is dated August 12, 1896. The rights and liabilities of the parties are to be determined as of the date of the fire, unless something has occurred in the mean time to change them. The defendant contends that the St. 1895, c. 293, has modified the rule of damages so that the plaintiff, if entitled to recover at all, is entitled to recover only the fair value of the property less the amount received by her for insurance thereon. The general rule is, that statutes operate prospectively, and not retrospectively, “ unless it is otherwise distinctly expressed in them, or clearly implied from the necessity of thus giving effect to their provisions.” Shallow v. Salem, 136 Mass. 136. There is nothing in the statute referred to which in express terms renders it retroactive, and we discover nothing in it which renders it necessary to so construe it in order to give effect to its provisions, or which takes it out of the operation of the general rule.

■ The request for a ruling that, on the plaintiff’s evidence, she was not entitled to recover, was rightly refused. The state of the evidence would not have justified such a ruling. Moreover, the defendant did not rest at the conclusion of the plaintiff’s evidence, and therefore was not entitled to an exception to the refusal of the court to give the ruling asked for. Goss v. Calkins, 162 Mass. 492.

Exceptions overruled.

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Bluebook (online)

50 N.E. 533, 171 Mass. 245, 1898 Mass. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wild-v-boston-maine-railroad-mass-1898.

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