BUCHER V. CHESHIRE R. CO., 125 U. S. 555 (1888)

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U.S. Supreme Court

Bucher v. Cheshire R. Co., 125 U.S. 555 (1888)

Bucher v. Cheshire Railroad Company

No. 132

Argued January 11, 1888

Decided March 19, 1888

125 U.S. 555


The plaintiff sued the defendants in a state court and recovered judgment. The highest appellate court of the state, reviewing the case decided the points of law involved in it against the plaintiff, set aside the judgment for error in the ruling of the court below and sent the case back for a new trial. The plaintiff then became nonsuit, and brought the present suit in the circuit court of the United States on the same cause of action. Held that he was not estopped.

The provision in Rev.Stat. § 721 that

"The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply"

is not applicable to proceedings in equity or in admiralty or to criminal offenses against the United States.

The courts of the United States adopt and follow the decisions of the highest court of a state in questions which concern merely the constitution or laws of that state; also where a course of those decisions, whether founded on statutes or not, have become rules of property within the state; also in regard to rules of evidence in actions at law, and also in reference to the common law of the state and its laws and customs of a local character, when established by repeated decisions.

The Supreme Judicial Court of Massachusetts having, in a cause between the same parties litigating in this action arising out of the transaction herein litigated and on the facts herein established, held (1) that the plaintiff, when injured by the negligence of the defendants' servants, was not traveling "for necessity or charity" within the meaning of those terms as used in the General Statutes of Massachusetts, c. 84, § 2; (2) that the provision in those statutes, c. 84, § 2, that whoever travels on

Page 125 U. S. 556

the Lord's Day except for necessity or charity shall be punished by a fine not exceeding ten dollars is a bar to recovery in an action against a railroad company by a person injured through the negligence of its servants while traveling on its railroad on Sunday not for necessity or charity, and (3) that the Act of the Massachusetts Legislature of May 15, 1817, that this prohibition against traveling on the Lord's Day shall not constitute a defense to an action against a common carrier of passengers for any tort or injury suffered by the person so traveling, does not apply to a case happening before the passage of the act; held that these adjudications are sustained by a long line of numerous decisions which establish a local rule of law within the Massachusetts, binding upon this Court, though not meeting its approval.

This action was brought to recover damages for personal injuries inflicted upon the plaintiff by reason of the joint tort of the defendants, while he was traveling in the State of Massachusetts as a passenger on a train operated by one of them. The defendants' plea was a general denial and a further allegation

"that if the plaintiff was traveling, as alleged by him, and while traveling was injured, he was traveling on a Sunday or Lord's Day, and not from necessity or charity, and in violation of said law of said Massachusetts, and that if he suffered any injury, it arose from and happened in consequence of his violation of said law."

There was a verdict for defendants under instructions from the court and a judgment on the verdict, to review which this writ of error was sued out.

Before the commencement of this action, the plaintiff had sued the defendants on the same cause of action in a state court of Massachusetts. He obtained a judgment against them in the court below which was reversed by the Supreme Judicial Court of the Commonwealth, Bucher v. Fitchburg Railroad, 131 Mass. 156, and the case remanded for a new trial. The plaintiff thereupon became nonsuit, and commenced this action in the circuit court of the United States. The case as presented in this Court is shown in the bill of exceptions, allowed by the court below, as follows:

"This was an action of tort for damages alleged by plaintiff to have been sustained by him through the negligence of the defendants while he was a passenger in the cars of said Fitchburg

Page 125 U. S. 557

Railroad Company. The writ, declaration, and all pleadings on file are referred to as a part of this bill of exceptions."

"Defendants are both common carriers of freight and passengers, the Fitchburg Railroad Company running trains from North Adams, Mass. to Boston, and the Cheshire Railroad Company from Fitchburg, Mass. to Keene, N.H., and thence to Bellows Falls, Vt., both companies running on the same track from Fitchburg to Ashburnham, Mass. At the trial before the jury, the plaintiff, a resident and citizen of Philadelphia, Penn., testified that at the time of the accident, he was the managing agent of a fire insurance company, attending to their business in New England; that on Saturday, August 5, 1876, being in Rutland, Vt., he took passage and started on the early morning railroad train of the Bennington & Rutland railroad in course and en route for Boston, said train connecting with said Fitchburg railroad train at North Adams; that the train was due and he expected and intended to reach Boston at 10:30 that evening; that this train reached North Bennington, Vt., a half hour too late to make connections for Boston with the Troy & Boston railroad train which connected with the state railroad run by the Fitchburg railroad at North Adams; that he then inquired of the ticket agent at that station what chance he had to get to Boston that night; that the ticket agent glanced along the timetable on the wall and said: 'You can get to Boston at 7:22 in the morning by taking the express freight at North Adams,' and advised him to drive right over to Hoosac, a distance of about eight miles; that plaintiff took a carriage and did so, and there took a mixed train, which carried him to North Adams, where he arrived about eleven o'clock that evening, and was there told by the conductor that the express freight started in about twenty minutes, but he found that this train also was delayed; he waited around the station until the express freight backed up and then got aboard, going into the caboose car with the consent of the conductor, starting from North Adams at about one or two o'clock Sunday morning; that there were other passengers in the car; that he had a ticket, which he had bought the previous week, entitling him to be carried over the

Page 125 U. S. 558

Fitchburg Railroad Company's line from Miller's Falls to Boston, and expected and was ready to pay his fare from North Adams to that place, the office at North Adams being closed so that he could not buy a ticket; that the train reached Ashburnham at about eight o'clock in the morning, and about a half hour afterward, whilst rounding a sharp curve about six miles from Fitchburg, collided with a train operated by the said Cheshire Railroad Company which was standing still upon the said track used in common by both defendants from Ashburnham to Fitchburg; that the car in which plaintiff was riding was telescoped, and he was seriously injured in his side and about his head, having his arm and the bones of his neck fractured, occasioning a permanent disability, for which he claimed damages to the amount of ten thousand (10,000) dollars."

The plaintiff also testified, in answer to questions put to him by counsel on direct and cross-examination, as follows, viz:

"(By MR. CLARK, pl'ff's counsel): Q. When you came down to Bennington and missed the Boston train why did you not stay over there?"

"A. I wanted to reach Boston for a special reason."

"Q. What was that?"

"A. I had heard from my sister, who was in Minnesota, stopping with an uncle, where I sent her for her health a year previous to that. I had a letter from her that she was very ill, and expressed in her letter that she preferred to be brought home to die. She had been feeble for a number of years."

"Q. Were you supporting her at this time?"

"A. I was, yes."

"Q. Had you made any reply to the letter she sent you?"

"A. I wrote her back that if she could prevail on my cousin to bring her as far as Chicago, I would meet her there and bring her the rest of the way, or if he preferred to go clear through to Philadelphia, I would be very glad, because my business was such that it was disadvantageous to leave my field any longer than it was necessary."

"Q. Had you informed your sister where she could reach you by mail?"

"A. I had, and when."

"Q. Where was it?"

"A. That I would be in Boston on the first Saturday of August, and whatever was her wish I would carry out -- either go to Chicago or through to St. Paul if it were necessary."

"Q. That is, would

Page 125 U. S. 559

you go through to St. Paul after leaving Rutland in the morning? Do you mean you would have gone there if this letter had not stopped you in Boston?"

"A. It is equivalent to that, yes."

"Q. What time did you expect this letter from your sister to reach Boston -- to reach you in Boston?"

"A. I expected it to be there on the Saturday I was going."

"Q. Then, as I understand, if this man could not accompany her East, you were going on after her and bring her yourself?"

"A. I would have gone on Saturday night."

"Q. Was that letter brought to you at any time?"

"A. It came to me whilst I lay at the Roolstone House, Fitchburg, on the Tuesday after the accident."

"Q. Brought up by any person?"

"A. By Mr. Merrifield, the general agent of my company residing in Boston."

"(By MR. SOWER, defendants' counsel): Q. You say you expected a letter from her in Boston?"

"A. Yes, sir."

"Q. What is the date of the letter you wrote her?"

"A. It may have been about the 15th of the month, or it may have been later than that date. I am rather inclined to the opinion that it was the 20th of the month."

"Q. The month of July?"

"A. The 20th of July."

"Q. You say you wrote your sister. You have been examined before in this case in the Massachusetts Supreme Court?"

"A. Yes, sir."

"Q. Did not you say before the letter was received about the 15th of July?"

"A. Yes, sir, and I say so now; about the 15th of July, but I think the probabilities are that it was the 20th or 21st, the reasonable probabilities."

"Q. When did you receive the letter from her?"

"A. About that time."

"Q. A short time before you answered it?"

"A. Yes sir."

"Q. You answered it the 15th?"

"A. 15th to the 20th."

"Q. Have you had any occasion or reason why you should change any part of your previous testimony?"

"A. No sir, I don't, except to make the correction in that one important particular."

"Q. What is that?"

"A. That I expected that letter that Saturday in Boston at the office of the general agent. I as fully expected it as yesterday I expected to be on the witness stand today."

"Q. You expected to find a letter from your sister, then? What made you expect to find it then more than any other Saturday?"

"A. Because I had notified her where to address me, and the time."

"Q. When did you

Page 125 U. S. 560

give her that notice?"

"A. I gave her that notice perhaps as late as July 22d."

"Q. Is the letter you now allude to the same letter which you say was about the 15th?"

"A. It is the same letter, for I think it was likely the 20th or 22d."

"Q. Where were you when you wrote that letter?"

"A. I think that letter was written from Concord, to the best of my recollection -- Concord, N.H. To the best of my recollection, I was at Concord the 21st, 22d 23d and 24th of July."

"Q. Are you testifying from memoranda you made?"

"A. No, except in trying to rehearse my field of operations to see where I was and ascertain as nearly as I can where I received the letter from my sister."

"(By MR. CLARK): Q. Something has been said about your testifying at the last trial of the case before the Massachusetts Supreme Court, that you wrote the letter to your sister about the 15th of July. When was the time of writing that letter first called to your attention?"

"A. When I was asked the question on the witness stand before said court."

"Q. When you testified at the last trial before said court?"

"A. Yes, sir."

"Q. Was that the first time you had ever had your attention called to it?"

"A. That was the first time."

"Q. You then stated about the 15th of July?"

"A. Yes, sir."

"Q. How long after the accident was it when you testified -- how many years?"

"A. Nearly three years."

"Q. Had your attention ever been called in any way to the date of that letter until you were testifying?"

"A. No it had not."

"Q. Well since then have you refreshed your recollection in any way as to the time when you wrote it?"

"A. The best I could within the past few days."

"Q. How?"

"A. By thinking over my routes of operations when out in the field of labor taking care of the interests of my company, where I was likely to have been on such a week and at such a week, and when I was likely to have received this letter and when I was likely to have answered it."

"Q. On what day did you expect this letter to arrive in Boston?"

"A. Which letter do you now refer to?"

"Q. The answer which was to come back from your sister. Did you expect that the answer from your sister would arrive before the 5th day of August, upon Saturday?"

"A. I directed her to write me at Boston

Page 125 U. S. 561

by Saturday, the first Saturday of August, that I would be in Boston at that time, and would complete arrangements for bringing her home or sending for her."

"Q. Now if you will answer the question, whether you expected the letter to arrive earlier than Saturday?"

"A. Not earlier than Saturday."

"(By MR. SOHIER:) Q. Your sister was in Minnesota. Where was she - in St. Paul?"

"A. In St. Paul."

"Q. Where she could be telegraphed to?"

"A. Yes, sir."

"Q. Where she could telegraph you if she knew where you were?"

"A. Yes, sir."

The conductor of defendant Fitchburg Railroad Co.'s train, called by plaintiff, testified that his train was some two hours late in leaving North Adams; that he was accustomed and allowed by the Fitchburg Railroad Co. to carry passengers on that train, and he took fares, which he turned over to the company; that he had not asked plaintiff for his fare or ticket, as he had been asleep; that the collision occurred between stations, and the trainmen in charge of the train of the Cheshire Railroad Co., defendant, with which his train collided neglected when they brought their train to a standstill to send back or set any or proper danger signals to warn him of their so being on the track ahead. No fault was ascribed to plaintiff except that he was traveling on Sunday.

Plaintiff contended and introduced evidence tending to show that said collision occurred through the joint negligence of defendants, and that the nature and extent of the injuries received by him and caused by same were of a serious and permanent character, occasioning damages amounting to a sum exceeding $5,000, which he claimed a right to recover upon the evidence.

At the conclusion of the testimony offered by plaintiff, defendants' counsel, not offering any evidence, cited and read to the court the case of this plaintiff against defendant, the Fitchburg Railroad Co. alone, reported in Massachusetts Reports, vol. 131, p. 156 (which it was admitted was brought to recover damages for the accident now made the subject of this suit and in which the plaintiff became nonsuit voluntarily after a new trial was granted), and contended that, under the law of Massachusetts relied on in its answer, the plaintiff could not recover,

Page 125 U. S. 562

that there was no evidence which would justify the jury in finding that he was traveling from necessity or charity, and that he could not maintain the action.

Plaintiff's counsel contended and claimed and asked the court to rule that the mere fact that he was traveling on the Sabbath or Lord's Day was not of itself alone a defense to the action or such as to prevent a recovery independently of the question whether he was traveling from necessity or charity or not; that the statutes of the Massachusetts on that subject did not apply, and constituted no defense under the law and the decisions of the federal courts.

His honor the presiding judge ruled as follows, viz.:

"In respect to the motion for a nonsuit, the defendant bases his motion upon three grounds:"

"First, that this case has been before the Supreme Court of Massachusetts, and the Supreme Court, upon the same state of facts arising upon the construction of a local statute, has decided that the plaintiff cannot recover by reason of a violation of the law with respect to Sunday; secondly, that the United States courts are bound to follow the construction which the supreme court of a state puts upon a local or state statute; and thirdly, that the case presented by the plaintiff is substantially the same case which was presented before the state court. It seems to me that the law is well settled that the United States courts are bound to follow the decisions of the supreme court of a state upon the construction of a local statute, and that this case comes within that principle or doctrine, and that therefore the only question which arises here is whether the plaintiff does present a different case from that which was decided by the supreme court of the state. Of course, this identical case was before the Supreme Court -- the very case which we have here -- and the only point is whether the facts which the plaintiff now presents are different from the facts which were before the state court. It does not seem"

to me that there is any material change in the testimony. I think that the testimony is substantially the same as was presented before the state court; that the changes which the plaintiff makes are immaterial, and do not affect the principles

Page 125 U. S. 563

which were laid down by the state court -- that is, admitting the testimony to be true as it goes in here, the principles laid down by the state court in construing the Sunday law, so-called, would apply to this case.

"Now the state court decided that this was not an act of charity or necessity on the part of the plaintiff; that he was not engaged in an errand of charity or of necessity. It seems that he was to receive a letter upon his arrival in Boston which was to determine whether he should go to the West for the relief of his sister. He was injured on coming to Boston before his arrival here -- that is, in one sense, the act of necessity or charity had not begun. It was not determined whether he should be obliged to go upon this errand until he received this letter. The letter might be of such purport as not to call for him to go for the relief of his sister, and therefore the Supreme Court said that the act of ascertaining whether a person shall do a charitable act is not an act of charity, and so far as the necessity of the act is concerned, the Supreme Court said that it must be a necessity which cannot be avoided; it must not be a necessity which arises from convenience. In other words, I cannot perform my secular duties during the week to the neglect of a necessary act and then wait until Sunday to perform an act and call it a necessary act. I cannot repair a waterwheel upon Sunday, during the time that the mill may have been stopped, although the stoppage of the mill upon a weekday might throw a thousand men out of employment and cause me very material damage. So here the plaintiff in this case received a communication from his sister about her illness the second week in July. Now whether he directed her to immediately answer the letter which he sent in reply to that communication, which was the condition of the evidence in the state court, or whether he directed her to answer the letter upon Saturday, August 6th, when he was to arrive here, and not, if you please, to have the letter arrive sooner, cannot make any difference in the principle of the case, because from the second week in July up to the 6th of August, he was engaged in his secular avocations, and therefore the act was not such an act of necessity as could not be helped, but he

Page 125 U. S. 564

postponed his necessary act in order to engage for some time in his secular avocations. Therefore it is very clear to my mind that upon the slight change in the testimony which is produced here, the plaintiff still comes within the rulings of the supreme court of this "

"Now I am not here to decide the question whether the court approves of this Sunday law or not. I am not here to decide the question whether, if the case came up in the first place before this Court, I should not allow this question, whether it was an act of necessity or charity, to go to the jury. In my present position, I am debarred from this, and the only question for me to decide is whether the case presented here is substantially the same case as that presented in the Supreme Court, and whether the principles laid down there in this identical case apply to the slightly different state of facts which is presented here. That is the only question. I am of opinion that it is substantially the same case, and therefore that I should abide by the decision of the supreme court of the state. As it is not customary for the United States courts to grant a nonsuit, perhaps the better way would be to direct a verdict for the defendant."

"MR. CLARK: Will your honor pardon me for submitting one more point: whether or no, as the evidence now stands, we are entitled to go to the jury upon the question whether this letter, in the ordinary course of the mail, would not have arrived upon the day which he says he expected it to come. We base it on this state of the evidence -- that the letter was written to his sister about the 22d of July. The evidence shows that it would take four or five days for the letter to go out there and then four or five days for a letter to come back, and under the circumstances and as the evidence puts it, his sister was to ascertain whether a gentleman would accompany her as far as Chicago or perhaps as far as her home in Philadelphia, or whether, if he found himself unable to come with her, she was in a condition to be moved; and further, whether this man was to go on for her. Now it seems to us that there is a question which the jury are entitled to pass upon -- whether the letter, under all the circumstances, would have

Page 125 U. S. 565

arrived in Boston earlier than Saturday, the 5th day of August, when he says he expected it to come -- that is, that the facts which appear in the record of the lower court are not the same facts that are shown here, and that there is something for the jury to pass upon in that particular, because, as your honor sees, if it took four or five days for the letter to go out there and four or five days for the reply to come back, that would consume ten days, and from the 22d of July to the 5th of August it would leave only two or three days, and the question is whether or no Mr. Bucher was entitled to believe that she might take those two or three days for the purpose of ascertaining whether this gentleman would come with her, or if she was in a condition to be moved and to make up her mind whether he should come for her at this time."

"COLT, J.: I hardly think that could make any difference. It seems to me that he, having knowledge that his sister was ill the second week in July, ought then immediately, under the decision and ruling of the supreme court of the state, to have communicated with her, and not to have delayed from the second week in July until the 22d or the 26th -- that is, from the time that he received this letter for several weeks he was engaged in his secular business."

"MR. CLARK: I think your honor has misunderstood what I said was the testimony now. The fact of his sister's illness did not come to his knowledge until the 22d of July. The first knowledge that he had of it, as he says and as the evidence stands, was from the letter that was forwarded to him at Concord, New Hampshire, from the main office. That he fixes as the 22d of July, so that he did not have knowledge of his sister's illness on the 15th; but as soon as he ascertained on the 22d that his sister was ill, he immediately replied to her "

"MR. WADLEIGH: Your honor will remember that he fixes the time of his being at Concord from the 20th to the 24th. This letter was forwarded to him at Concord, and he received it there and answered it as soon as he received it."

"COLT, J.: I cannot but think that, upon the testimony presented, this case comes within the principles laid down. The motion is granted. "

Page 125 U. S. 566

The presiding judge thereupon directed the jury to return a verdict for defendants, and plaintiff then duly excepted to all said rulings and refusals to rule, directions, and doings of the presiding judge, and said exceptions were duly allowed. The jury returned a verdict for defendants, as directed by the presiding judge, as above stated.

The statute of Massachusetts referred to in the defendants' plea, as in force at that time, is to be found in the General Statutes of the state, c. 84, § 2, and is as follows: " Whoever travels on the Lord's Day, except for necessity or charity, shall be punished by a fine not exceeding ten dollars."

After the accident happened, and before the suit in the state court was brought, the Legislature of Massachusetts enacted the following statute:

"The provisions of § 2 of c. 84, Gen. Stat., prohibiting traveling on the Lord's Day, shall not constitute a defense to an action against a common carrier of passengers for any tort or injury suffered by a person so traveling."

This last-named statute was held by the state court not to be retroactive, and not to affect this case.

Page 125 U. S. 576

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