Milton v. Bangor Railway & Electric Co.

Emery, C. J.

The Old Town, Orono and Veazie Railroad Company incorporated in 1891 by chap. 116 of the special laws of that year, received authority to occupy portions of the streets of Old Town with its railroad tracks, &c., but coupled with the duty of keeping and maintaining in repair all such portions and of making all other repairs of such streets which should be rendered necessary by the occupation of them by its railroad. (Secs. 1 and 2 of the charter.) Under this charter that company constructed its tracks and operated its railroad through various of the streets of Old Town. Its property, franchise and duty subsequently passed by various conveyances and legislative acts to the defendant company which since 1905 has maintained the tracks and operated the railroad through the same and other streets of Old Town.

The plaintiff, while traveling in 1906 with his horse and carriage through the streets of Old Town, suffered an injury to his horse and harness through a defect in a crossing over the defendant company’s tracks at a junction of two streets, which defect was due to the defendant company’s neglect of its duty under its charter. The plaintiff was without fault and has not been compensated.

For defense the defendant company relies solely upon the following provision in sec. 3 of the original charter of 1891, viz:

“Said corporation shall be liable for any loss or damage which any person may sustain by reason of any carelessness, neglect or misconduct of its agents or servants, or by reason of any defect in so much of said streets or roads as is occupied by said railroad, if ¡such defect arises from neglect or misconduct of the corporation, *222 its agents or servants; and in actions brought against the company to recover damages by reason of such defects, the plaintiff shall have the rights and be subject to the burdens of proof and limitations and conditions provided by the general statutes applicable to’ suits for such causes against towns as now existing, the directors of said company standing in this respect in place of town officers.”

To maintain a suit for such a cause of action against a town it must be made to appear that one or more of certain specified town officers had actual notice of the defect twenty-four hours before the injury was received from it, and within fourteen days after the injury received notice thereof from the plaintiff. There being no evidence to the contrary it must be assumed that no director of the defendant company had any such notice of the defect or of the injury. The defendant contends that the right of action against it for damages thus caused by it, is a creature of the statute cited and is limited to cases stated in that statute, viz., to cases where a director had the twenty-four hours previous notice and the subsequent fourteen days’ notice.

This contention cannot be sustained. The plaintiff has a common law right of action independent of the statute. There was granted by the State to the defendant company a right, a franchise, to occupy portions of the streets, but coupled with the corresponding duty of keeping them in repair. The duty was prescribed for the protection of the traveling public. It‘ was voluntarily assumed along with the right, and, with it, was assumed the necessary concomitant of a common law liability to any of the traveling public suffering injury through its breach. The assumption of the duty creates the liability and the consequent right of action in favor of those persons for whose protection the duty was prescribed. Veazie v. Penobscot R. R. Co., 49 Maine, 119 ; Tobin v. P. S. & P. R. R. Co., 59 Maine, 183; Gillett v. Western R. R. Corp., 8 Allen, 560 ; Cates v. Pennsylvania R. R. Co., 150 Pa. St. 50 . ( 24 At. Rep. 638 ). "At common law, whenever a right is conferred and a corresponding duty imposed upon a person or corporation, it is answerable to a third person who sustains damage by the negligent discharge of that duty.” Mann v. Central Vermont R. R. Co., 55 Vt. 484 at p. 487 .

*223 This principle is affirmed in the case of street railroads, ex majore cautela, by our general statutes R. S., ch. 53, sec. 27. viz:

"All street railroad corporations shall be liable for any loss or damage which any person may sustain, by reason of any negligence or misconduct of any such corporation, its agents or servants, or by reason of any obstructions or defects in ■ any street or road of any city or town, caused by the negligence of such corporation, its agents or servants.”

Of course, municipal corporations which act in the care of the streets, as governmental agencies, as trustees for the public, are not within this common law rule. The distinction and the reasons for it are familiar and need no new statement. Riddle v. Proprietors, &c., 7 Mass. 169 .

The defendant further contends, however, that if the legislature did not create the plaintiff’s right of action, it has by the words of the charter quoted above exempted the defendant company from liability for injuries caused by its negligent performance of its duty of keeping the streets in repair, unless some one of its directors had twenty-four, hours previous notice of the defect and received notice of the injury within fourteen days afterward. To this claim of exemption the answer should be apparent. The people have not conferred upon the legislature the power to exempt any particular person or corporation from the operation of the general law, statutory or common. Holden v. James, 11 Mass. 396 ; Simonds v. Simonds, 103 Mass. 572 ; Lewis v. Webb, 3 Maine, 326 ; Durham v. Lewiston, 4 Maine, 140. In Lewis v. Webb, supra, the court, per Mellen, C. J., said “On principle then it can never be within the bounds of legitimate legislation to enact a special law, or pass a resolve dispensing with, the general law in a particular case, and granting a privilege and indulgence to one man by way of exemption from the general law, leaving all other persons under its operation.”

We have no occasion to consider whether the attempted statutory exemption is forbidden by the XIV Amendment to the U. S. Constitution, or by Section 19 of the Maine Declaration of Rights which declares that "every person for an injury done him in person, *224 reputation, property or immunities shall have remedy by due course of law.” Preston v. Drew, 33 Maine, 558; Bennett v. Davis, 90 Maine, 102. It sufficiently appears, without reference to those constitutional provisions, that despite the provisions of its charter the defendant company is not exempt from liability for the consequences of its negligence in the performance. of the duty it assumed, and that the plaintiff is entitled to judgment according to the stipulations in the report, to wit, for fifty dollars.

Judgment for the plaintiff for fifty dollars.