Petition — Owen v. Meserve

80-729 | NOV

| FILED

g 1980 -

MICHAEL RODAK, JR., CLERK

No. .

In the

Supreme Court of the United States.

Ocroser TERM, 1980.

ALVIN J. OWEN, SR., ADMINISTRATOR,

PETITIONER,

v.

ROBERT W. MESERVE er At.,

TRUSTEES OF THE PROPERTY OF THE BOSTON

AND MAINE RAILROAD CORPORATION,

RESPONDENTS.

Petition for a Writ of Certiorari to the

Massachusetts Supreme Judicial Court.

Leo M. Lazo,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 482-3030

Donald P. Garrity,

Charles D. Kelley,

585 Pleasant Street,

Malden, Massachusetts 02148.

(617) 322-1918, 322-1110

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

~ nl

Question Presented.

Whether that portion of the Massachusetts Wrongful Death

Statute which denies recovery for wrongful death caused by

the negligent action of a railroad, where Massachusetts law

permits recovery for personal injuries, violates the equal pro-

tection clause of the Fourteenth Amendment of the United

States Constitution?

Table of Contents.

Opinion below 2

Jurisdiction 2

Statutes and constitutional provisions 2

Statement of the case 4

Statement of facts 4

Reasons why the writ should be granted 6

Conclusion 10

Appendix follows page 10

Table of Authorities Cited.

CASES.

Craig v. Boren, 429 U.S. 190 (1976) 8

Eisenstadt v. Baird, 405 U.S. 438 (1972) 8

Kalinowski v. Smith, Mass. App. Ct. Adv. Sh. (1978)

1261, 383 N.E. 2d 550 (1978) 6

McNally v. Trustees, N.Y. N.H. & H. R.R., 325 Mass.

367, 90 N.E. 2d 318 (1959) 6n

Moragne v. States Marine Lines, 398 U.S. 375 (1970) 8,9

Mounsey v. Ellard, 363 Mass. 693, 297 N.E. 2d 43

(1973) 6

Owen v. Meserve, Mass. Adv. Sh. (1980) 1825, 408

N.E. 2d 867 1, 7n

Pridgen v. Boston Housing Authority, 364 Mass. 696,

308 N.E. 2d 467 (1974) 6

Reed v. Reed, 404 U.S. 71 (1971) 7

ii TABLE OF AUTHORITIES CITED.

Rowe v. Richards, 35 S.D. 201 (1915) 9n

San Antonio School District v. Rodriguez, 411 U.S.

(1973) 8

Soule v. Massachusetts Electric Company, Mass. Adv.

Sh. (1979) 1380, 390 N.E. 2d 716 (1979) 6

Todd v. Sandidge Construction Company, 341 F.2d 75

(1964) 9n

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164

(1972) , 7

Vigeant v. Postal Telegraph Cable Co., 260 Mass. 335,

157 N.E. 651 (1927) 7n

STATUTES.

United States Constitution

Fourteenth Amendment 2

§1 2,10

28 U.S.C. § 1257 2

Mass. General Laws c. 229, § 2 2,7

MISCELLANEOUS.

Gunther, Forward: In Search of Evolving Doctrine on

a Changing Court: A Model for a Newer Equal Pro-

tection, 86 Harv. L. Rev. 1 (1972) 8

Restatement (Second) of Torts § 336 (1965) 6

No. .

In the

Supreme Court of the United States.

OcrToBER TERM 1980.

ALVIN J. OWENS, SR., ADMINISTRATOR,

PETITIONER,

ROBERT W. MESERVE €&r At.,

TRUSTEES OF THE PROPERTY OF THE BOSTON

AND MAINE RAILROAD CORPORATION,

RESPONDENTS.

Petition for a Writ of Certiorari to the

Massachusetts Supreme Judicial Court.

The petitioner, Alvin J. Owen, Sr., Administrator of the

Estate of Alvin J. Owen, Jr., petitions for a writ of certiorari to

review the judgment of the Massachusetts Supreme Judicial

Court in this case.

2

Opinion Below.

The opinion of the Massachusetts Supreme Judicial Court is

reported at Mass. Adv. Sh. (1980) 1825, 408 N.E. 2d 867

(1980), and is reproduced in the appendix attached hereto.

Jurisdiction.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257.

Statutes and Constitutional Provisions.

UNITED STATES CONSTITUTION, FOURTEENTH AMENDMENT, § 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

MASSACHUSETTS GENERAL LAWS C. 229, § 2.

Wrongful death; liability for damages: A person who

(1) by his negligence causes the death of a person in the

3

exercise of due care, or (2) by wilful, wanton or reckless

act causes the death of a person under such circumstances

that the deceased could have recovered damages for per-

sonal injuries if his death had not resulted, or (3) operates

a common carrier of passengers and by his negligence

causes the death of a passenger, or (4) operates a common

carrier of passengers and by his wilful, wanton or reckless

act causes the death of a passenger under such circum-

stances that the deceased could have recovered damages

for personal injuries if his death had not resulted, shall be

liable in damages in the sum of not less than five thousand

nor more than fifty thousand dollars, to be assessed with

reference to the degree of his culpability and distributed

as provided in section one; except that (1) the liability of

an employer to a person in his employment shall not be

governed by this section, (2) a person operating a railroad

shall not be liable for negligence in causing the death of a

person while walking or being upon such railroad con-

trary to law or to the reasonable rules and regulations of

the carrier, and (3) a person operating a street railway or

electric railroad shall not be liable for negligence for

causing the death of a person while walking or being

upon that part of the street railway or electric railroad

not within the limits of a highway. A person shall be lia-

ble for the negligence or the wilful, wanton or reckless act

of his agents or servants while engaged in his business to

the same extent and subject to the same limits as he would

be liable under this section for his own act, except that

the damages shall be assessed with reference to the degree

of culpability of his agents or servants. Damages under

this section shall be recovered in an action of tort by the

executor or administrator of the deceased. No recovery

shall be had under this section for a death which does not

occur within two years after the injury which caused the

a)

death. An action to recover damages under this section

shall be commenced within two years from the date of

death or within such time thereafter as is provided by sec-

tion four, four B, nine or ten of chapter two hundred and

sixty.

Statement of the Case.

This case came to be heard in the Superior Court in

November, 1978, and during the course of trial the plaintiff

seasonably raised the federal question involved in this petition.

At the close of trial, the court directed a verdict for the defend-

ant, and the plaintiff seasonably filed an appeal to the Massa-

chusetts Appeals Court and on February 15, 1980 this case was

then transferred sua sponte to the Massachusetts Supreme

Judicial Court. On August 5, 1980, the Massachusetts

Supreme Judicial Court affirmed the judgment of the trial

court.

Statement of Facts.

On June 1, 1971 at approximately 5:15 p.m. Alvin J. Owens,

Jr., and a friend were crossing railroad tracks in the City of

Malden owned by the defendant, Boston and Maine Corpora-

tion. The tracks consisting of two, an eastbound and west-

bound track on which budliner passenger trains travel from

North Station, Boston to Reading and return. The area adja-

cent to the track where the accident occurred consisted of

residential homes, a fire station, and the high school football

stadium. There was also evidence children were frequently

5

seen by the defendants crossing the tracks in this area and

watched football games while sitting on the trackbed. During

football games the engineers were notified to operate at re-

duced speed limits.

The boys were standing in the eastbound track as an east-

bound train consisting of four cars approached. This train

was traveling at approximately 60-65 miles ner hour. As the

train proceeded towards the pedestrians, it sounded a horn but

did not slow down. The engineer observed the boys on the

track when he was 1,500 feet from them. These boys were

facing the eastbound track and while standing on that track

did not know a westbound four car train was also approaching

at a speed of approximately 70 miles per hour from behind.

Four of these diesel operated self propelled passenger cars

weighed approximately 464,000 pounds. The operator of the

eastbound train made a hand gesture to the boys that a train

was approaching from the rear, however, they did not indi-

cate this warning was understood. /; ‘he eastbound train

passed by without slowing down, they cussed onto the west-

bound track.

The fireman who was operating the westbound train no-

ticed the boys in the adjacent track, a distance of so. .e 400 feet

from them facing away from him. The fireman upon seeing

the boys failed to apply any brakes or take any other evasive

action until the boys crossed onto the westbound track. He

applied the brakes and emergency brakes although aware of

the other train. Just before impact the boys attempted to turn

around but were struck by the westbound train traveling at a

speed of approximately 65 miles per hour, killing both boys.

The operator of the westbound train who had the title of

“Fireman” had at the time of this accident been ordered by the

defendant, Boston and Maine Corporation to be restricted to

yard service in respect to operating these trains. Neither boy

was aware of the westbound train until the moment of impact.

6

The westbound train traveled approximately 300 feet with

its brakes applied to the point of impact and 2,000 feet until it

came to a stop on the tracks. Human remains were found

from the point of the impact to where the train came to a stop.

At the point of the accident there was evidence of pedestrian

paths, and there was no fence adjacent to the railroad tracks in

the area of the accident for a distance of 400 feet or more.

Reasons Why the Writ Should Be Granted.

Under Massachusetts tort law, an owner or occupier of land

must exercise reasonable care to 1) all persons lawfully on their

land; 2) perceived trespassers in a position of danger who do

not understand or appreciate their peril; 3) perceived helpless-

ly trapped trespassers; and 4) foreseeable child trespassers.

Mounsey v. Ellard, 363 Mass. 693, 297 N.E. 2d 43 (1973);

Pridgen v. Boston Housing Authority, 364 Mass. 696, 308 N.E.

2d 467 (1974); Kalinowski v. Smith, Mass. App. Ct. Adv. Sh.

(1978) 1261, 383 N.E. 2d 550 (1978); Soule v. Massachusetts

Electric Company, Mass. Adv. Sh. (1979) 1380, 390 N.E. 2d

716 (1979). See Restatement (Second) of Torts § 336 (1965).

In the present case, the train operators were under a duty to

exercise ordinary care to avoid injuring the boys the moment

they perceived the boys in an obvious position of danger which

the boys were unaware of.' If the plaintiff’s intestate had

been injured, he would have had a cause of action founded

upon the negligence of the railroad.*

‘In Massachusetts “the railroad is under a duty to sound a warning or

slacken the speed of its train where a pedestrian manifests an intention to

cross the tracks.” Kalinowski v. Smith, Mass. App. Ct. Adv. Sh. (1978) 1261

at 1264, 383 N.E. 2d 550, 552 (1978); see McNally v. Trustees, N.Y. N.H. &

H. R.R., 325 Mass. 367, 370, 90 N.E. 2d 318 (1950).

*“We assume, without deciding, that in a case similar to the present one a

child who was injured but not killed could recover damages on the basis of

7

However, the Massachusetts Wrongful Death Statute,

Mass. G.L. c. 229, § 2, creates a duty upon the railroads only

to refrain from wilful, wanton and reckless conduct with re-

spect to any trespassers who are killed, hence, the foundation

of liability for death is a lesser duty owed than that upon

which liability for personal injury is based. This statutory

limitation on the railroad’s liability results in the railroad ow-

ing a duty of due care to those in the boys’ situation who are

injured but not to those who are killed. This anomaly results

in predicating the right to recover for identical breaches in du-

ty upon whether death or mere injury ensue and is clearly un-

constitutional .*

In this case, the Massachusetts Wrongful Death Statute ar-

bitrarily and unjustifiably deprives the plaintiff of a right of

recovery for negligently inflicted death caused by a railroad,

where the same negligent act would create a right of recovery

if injury resulted. This unequal treatment denying any re-

covery for death, has created an irrational and impermissible

classification whose special or defining legislative character-

istic is the extent of the harm. These facts must be examined

by middle tier review as the right to life is fundamental. This

legislative classification does not bear a “significant” or “sub-

stantial” relationship to a state purpose. Reed v. Reed, 404

U.S. 71 (1971); Weber v. Aetna Casualty & Surety Co., 406

the negligence of the railroad without showing willful, wanton or reckless

conduct.” Owen v. Meserve. (See App. at p. 3a.)

>The plaintiff does not question the constitutionality of the Massachusetts

Wrongful Death Statute in 1971, but rather he contends that a portion of

that statute has now become unconstitutional due to changes in Massachu-

setts general tort law.

It is nothing new in constitutional law that a statute valid at one time

may become void at another time because of altered circumstances.

Vigeant v. Postal Telegraph Cable Co., 260 Mass. 335, 341, 157 N.E.

651, 655 (1927).

8

U.S. 164 (1972); Craig v. Boren, 429 U.S. 190 (1976). Under

this standard of equal protection, this Court should determine

whether the actual or “articulated” legislative purpose is in

fact furthered by the legislative classification. San Antonio

School District v. Rodriguez, 411 U.S. 1 (1973); Eisenstadt v.

Baird, 405 U.S. 438 (1972); Gunther, Forward: In Search of

Evolving Doctrine on a Changing Court: A Model for a New-

er Equal Protection, 86 Harv. L. Rev. 1 (1972). The plaintiff

argues that there is no relationship in fact as the railroad is

already under a duty to refrain from negligence in personal in-

jury actions.

Furthermore, there is no “rational” relationship between

the statutory limitation on the railroad’s liability and the pur-

pose of the statute. This Court has refused to uphold this un-

just and illogical principle:

Where existing law imposes a primary duty, violations of

which are compensable if they cause injury, nothing in

ordinary notions of justice suggests that a violation should

be nonactionable simply because it was serious enough to

cause death. On the contrary, that rule has been criti-

cized ever since its inception, and described in such terms

as “barbarous.” Moragne v. States Marine Lines, 398

U.S. 375, 381 (1970).*

This statutory discrimination permits the tortfeasor to profit

by relief from liability after committing the most serious

harm.°

*After reviewing the history of wrongful death, this Court remarked on

the gross inequity and injustice which arose in maritime law where “within

territorial waters, identical conduct violating federal law (here the furnish-

ing of an unseaworthy vessel) produces liability if the victim is merelv in-

jured, but frequently not if he is killed.” Moragne, supra at 395.

5“Practically, it would mean that the graver the harm the better the

chance of immunity. Moreover, it allows the act of the tortfeasor to fore-

There is no rational relationship between the governmental

objective of having an effe_ tive transportation system and the

extent of harm caused by the negligent or wrongful act. Rail-

roads predicate the manner in which they operate trains on the

primary duty imposed by the general negligence rule and not

on the fact that they may escape liability for a negligent act if

they kill the victim. Moragne, supra.* Nor do victims guide

their conduct by the legal consequences of the extent of harm.

The Massachusetts courts have established a standard to

protect people from great risk of harm. It would be repre-

hensible to hold that a person’s personal physical safety is less

worthy of protection or a claimant less worthy of compensa-

tion because of death, and yet, that is the present state of

Massachusetts law in this situation. It is plainly unconstitu-

tional to make such an arbitrary and unreasonable distinction

based upon the nature of harm in the assigning of basic rights

and duties and it becomes even more intolerable when such in-

equality does not result in any compensating advantage or

benefit.

close his own liability — the life of the action would be in his hands. These

results have a sound cogency, quite aside from the general reasons justifying

the death statutes, for the argument that those deprived of their own by

death should not also be deprived of all recompense by the death.” Todd v.

Sandidge Construction Con., any, 341 F.2d 75, 77 (1964).

The courts have long recognized . . .

a glaring absurdity in allowing a husband and father, if injured, but

not killed, a right of action for the recovery of the damages thus sus-

tained, and denying to his widow and children any compensation for

the damages inflicted upon them, should the injury be greater and

result in his death.

.

Rowe v. Richards, 35 S.D. 201, 204 (1915), quoting Maney v. C., B. & Q. R.

R. Co., 49 Ill. App. 105.

*“It can hardly be said that shipowners have molded their conduct around

the possibility that in a few special circumstances they may escape liability

for such a breach.” Moragne, supra at 404.

10

Conclusion.

The particular provision of the Massachusetts Wrongful

Death Statute relating to railroads, violates § 1 of the Four-

teenth Amendment, by creating unequal treatment based

upon an irrational distinction not reasonably related to any

public purpose.

Respectfully submitted,

LEO M. LAZO,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 482-3030

JAMES A. McDONALD, JR.,

DONALD P. GARRITY,

CHARLES D. KELLEY,

585 Pleasant Street,

Malden, Massachusetts 02148.

(617) 322-1918, 322-1110

Mass. Adv. Sh. (1980) la 1825

Owen ov. Meserve.

A.vin J. Owen, Sr., administrator, vs. Ropert W. MESERVE

& another, trustees.

Middlesex. April 9, 1960. — August 5, 1960.

Present: Hewnessey, C.J., Quimco, Baaucnen, Wizuns, & Annas, JJ.

Negligence, Railroad, Trespasser. Constitutional Law, Equal protection

of laws.

Tort. Writ in the Superior Court dated May 25, 1972.

The case was tried before Mitchell, J.

After review was sought in the Appeais Court, the Su-

preme Judicial Court, on its own initiative, ordered direct

appellate review.

Donald P. Garrity (James A. McDonald, Jr., with him)

for the plaintiff.

Francis J. Bousquet & Frank A. Smith, III, for the de-

fendants.

BraucuHeER, J. On June 1, 1971, the plaintiff’s intestate, a

fifteen-year-old boy, was struck and killed by a passenger

train of the defendants, trustees of the Boston & Maine Cor-

poration (railroad). A verdict has been directed for th de-

fendant in the plaintiff’s action for wrongful death by vir-

tue of a provision in G. L. c. 229, § 2, as amended through

St. 1967, c. 666, § 1: “a person operating a railroad shall

not be liable for negligence in causing the death of a person

while walking or being upon such railroad contrary to law

or to the reasonable rules and regulations of the carrier.”

The plaintiff contends that he has a common law claim not

subject to the statute and, alternatively, that the statute

denies equal protection of the laws in violation of the Four-

teenth Amendment to the Constitution of the United States.

We reject these contentions and uphold the judgment.

1826 2a Mass. Adv. Sh. (1980)

Owen vo. Meserve.

The plaintiff's complaint contains four counts, one for

conscious pain and suffering as a result of the defendants’

negligence, one for wrongful death as a result of the defend-

ants’ negligence, one for conscious pain and suffering as a

result of the defendants’ willful, wanton and reckless con-

duct, and one for wrongful death as a result of the defend-

ants’ willful, wanton and reckless conduct. The case was

tried before a jury and at the close of ai’ the evidence the

judge allowed the defendants’ motion for a directed verdict.

The plaintiff appealed from the resulting judgment, and we

transferred the case from the Appeals Court on our own mo-

tion.

There was evidence of the following facts. About 5:15

p.M. the boy and a friend climbed the abutment of a rail-

road overpass in Malden and stepped onto the roadbed of

the railroad. The engineer and the fireman of a train

bound for Boston, travelling seventy miles an hour, saw

them about 400 feet ahead, in the path of an oncoming train

bound for Reading. The Reading-bound train blew its air

horn and the boys moved into the path of the Boston-bound

train. The engineer and the fireman of the Reading-bound

train tried to warn the boys by pointing down the track, but

the boys responded with obscene gestures. The fireman of

the Boston-bound train sounded his horn and applied the

brakes, but the train hit the boys at a speed of sixty to sixty-

five miles an hour and continued about 2000 feet before

coming to a stop.

The plaintiff does not now contend that there was evi-

dence of the boy’s conscious pain and suffering or of the de-

fendants’ willful, wanton or reckless conduct. Nor does he

contend that the boy was lawfully on the railroad track. He

argues that the railroad owed him a common law duty of

reasonable care, not subject to the statutory limitation on

wrongful death actions, citing Pridgen v. Boston Hous.

Auth., 364 Mass. 696, 713 (1974) (“helplessly trapped” tres-

passer); and Soule v. Massachusetts Elec. Co., Mass.

: (1979)* (“foreseeable child trespassers”). Alterna-

* Mass. Adv. Sh. (1979) 1380, 1385.

Mass. Adv. Sh. (1980) 3a 1827

Owen vo. Meserve.

tively, he argues that the statutory distinction between tres-

passers who are injured and trespassers who are killed is

irrational and impermissible as a denial of equal protection.

In Gaudette v. Webb, 362 Mass. 60, 71 (1972), we held

that “the right to recovery for wrongful death is of common

law origin,” and that statutes limiting the period for bring-

ing actions for death may be tolled pursuant to G. L. c. 260.

But we clearly stated that other provisions of G. L. c. 229,

§ 2, imposed limitations on such recovery. In Minkley v.

MacFarland, 371 Mass. 891 (1976), we rejected claims for

common law recovery in addition to a statutory claim for

wrongful death. See Meagher v. Electrolux Corp., 388

F. Supp. 1009, 1011 (D. Mass. 1975). Recovery for wrong-

ful death remained subject to the statutory provisions, in-

cluding the denial of recovery for wrongful death of a tres-

passer caused by the negligence of a railroad. Corrado v.

New York, N.H. & H. R.R., 333 Mass. 417, 419-420 (1956).

We consider no question as to the effect of St. 1973, c. 699,

§ 1, effective January 1, 1974, and subsequent amendments

to G. L. c. 229, § 2.

A limitation on the recovery of damages for wrongful

death does not impinge on a constitutionally protected

substantive right and is not predicated on a constitutionally

suspect classification. Hence the validity of the classifica-

tion must be sustained against the plaintiff’s equal protec-

tion claim unless the classification rests on grounds wholly

irrelevant to the achievement of any legitimate governmen-

tal objective. Harris v. McRae, | aaa (1980).°

See Paro v. Longwood Hosp., 373 Mass. 645, 648-65]

(1977).

We assume, without deciding, that in a case similar to the

present one a child who was injured but not killed could

recover damages on the basis of the negligence of the rail-

road without showing willful, wanton or reckless conduct.

Cf. Kalinowski v. Smith, Mass. App. Ct. ‘

>48 U.S.L.W. 4941, 4948 (June 30, 1980).

1828 4a Mass. Adv. Sh. (1980)

Owen v. Meserve.

(1978)° (child of four years and eight months). “Under the

traditional common law analysis,” however, willful and

wanton misconduct would be required. Soule v. Massachu-

setts Elec. Co., Mass. _, (1979).2 We recognize

that changing conditions may render a statute unequal in its

operation and invalid even though it was valid when

enacted. Vigeant v. Postal Tel. Cable Co., 260 Mass. 335,

342 (1927). But we do not think our decision in the Soule

case, adopting a more modern view of common law liability

to child trespassers, rendered invalid a contrary statutory

rule that retained some rational force.

The law governing recovery for wrongful death has been

largely statutory in the United States, and has varied from

State to State. See 1 S.M. Speiser, Recovery for Wrongful

Death § 1:9 (2d ed. 1975). The governing statute in

Massachusetts in 1971 defined the beneficiaries of such

recovery, fixed maximum and minimum dollar amounts,

and provided for assessment of damages with reference to

the degree of the defendant’s culpability. Thus the prin-

ciples governing recovery for death were different in many

important respects from those governing personal injury.

We seem never to have passed on the constitutionality of

such differences, but equal protection challenges to similar

differences have been rejected in other States. Butler v.

Chicago Transit Auth., 38 Ill. 2d 361, 365 (1967) (max-

imum recovery). Glick v. Ballentine Produce Inc., 396

S.W.2d 609, 615 (Mo. 1965), appeal dismissed, 385 U.S. 5

(1966) (same). Gibbs v. Prior, 107 N.H. 218, 220 (1966)

(same). Cogger v. Trudell, 35 Wis. 2d 350, 360 (1967)

(denial of recovery by children when spouse survives). Cf.

Pinnick v. Cleary, 360 Mass. 1, 27-31 (1971) (limitation of

damages for pain and suffering in automobile cases). So far

as In re Paris Air Crash of March 3, 1974, 427 F. Supp. 701,

708 (C.D. Cal. 1977), indicates that damage rules for

wrongful death cases must harmonize with the rules for per-

“Mass. App. Ct. Adv. Sh. (1978) 1261, 1265.

4 Mass. Adv. Sh. (1979) 1380, 1383.

Mass. Adv. Sh. (1980) 5a 1829

Owen v. Meserve.

sonal injury and property damage cases, we do not follow

that decision.

The exception negating railroad liability for negligence

resulting in the death of a trespasser first appeared in St.

1853, c. 414, § 2, and it was carried into G. L. c. 229, § 3

(1932). At that time no liability was imposed for death

resulting from willful, wanton or reckless conduct of a rail-

road. Foynes v. New York Cent. R.R., 276 Mass. 89, 92

(1931). Thus the railroad’s only liability was based on neg-

ligence, and the exception apparently negated any liability

of a railroad for the death of a trespasser on its right-of-way.

Liability for willful, wanton or reckless conduct was added

by St. 1941, c. 460, § 2, but the exception remained coexten-

sive with the liability. The exception disappeared in the re-

visions by St. 1946, c. 614, and St. 1947, c. 506, which

changed recovery from a “punitive” to a “compensatory”

basis, but it was restored by St. 1949, c. 427, § 3, inserting

G. L. c. 229, § 2A. See Gaudette v. Webb, 362 Mass. 60,

66-67 n.4 (1972). By St. 1958, c. 238, § 1, amending G. L.

c. 229, § 2, the exception was limited to the liability of a

railroad “for negligence,” and so it remained at the time of

the death now in issue. At that time, therefore, a railroad

apparently might have become liable for the death of a tres-

passer resulting from its willful, wanton or reckless conduct.

This history suggests that the Legislature, in fixing the

rules for recovery against a railroad for the death of a

trespasser, balanced the goal of an effective transportation

system against the danger of death to trespassers, taking into

account the degree of culpability of the railroad and the op-

portunity of the trespasser to avoid the hazard. The bal-

ance was struck differently at different times; sometimes it

coincided with the balance struck by our common law deci-

sions on comparable cases of personal injury, sometimes it

did not. But we are not prepared to say that the balance

provided by the Legislature in 1971 was wholly irrelevant to

the achievement of any legitimate governmental objective.

Judgment affirmed.